In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐3307
CLIFTON MORGAN,
Plaintiff‐Appellant,
v.
CITY OF CHICAGO, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:11‐cv‐09271 — Charles R. Norgle, Judge.
____________________
ARGUED SEPTEMBER 29, 2015 — DECIDED MAY 6, 2016
____________________
Before WOOD, Chief Judge, and EASTERBROOK and RIPPLE,
Circuit Judges.
RIPPLE, Circuit Judge. Clifton Morgan was arrested by three
Chicago Police Department (“CPD”) officers—Lieutenant
Duane DeVries, Sergeant Christian Tsoukalas, and Sergeant
Anthony Schulz—and charged with possession of crack co‐
caine and resisting arrest. The Circuit Court of Cook County
dismissed the charges, and Mr. Morgan brought this civil ac‐
2 No. 14‐3307
tion against the arresting officers and the City of Chicago (col‐
lectively, “the defendants”). Along with several state‐law
claims, he brought a claim under 42 U.S.C. § 1983 in which he
alleged that the officers had conspired to violate and did vio‐
late his constitutional rights during the course of the arrest.
Mr. Morgan’s claims were tried to a jury, which returned a
verdict for the defendants. Mr. Morgan filed a motion for a
new trial, arguing that the defendants had violated the Equal
Protection Clause by exercising their peremptory strikes on a
racially discriminatory basis during jury selection and that the
district court had committed multiple procedural and sub‐
stantive errors, which had deprived him of a fair trial. The
court denied the motion, and Mr. Morgan timely appealed.
For the reasons set forth in this opinion, we affirm the judg‐
ment of the district court.
I
BACKGROUND
A.
On May 2, 2011, Mr. Morgan was arrested outside a house
at 7746 South Greenwood Avenue in Chicago. The arresting
officers noticed Mr. Morgan as he crossed the street and pur‐
sued him on suspicion that he was in possession of a firearm.
The officers apprehended Mr. Morgan outside the house, us‐
ing force that Mr. Morgan would later contend was excessive
but that the officers would maintain was reasonable because
he was resisting arrest.
Mr. Morgan was charged with resisting arrest as well as
possession of a controlled substance based on a small bag of
cocaine, which the officers claimed to have found near
No. 14‐3307 3
Mr. Morgan after his arrest. The Circuit Court of Cook
County dismissed the possession charge on the ground that
there was not probable cause to prosecute, and the State’s At‐
torney dropped the charge for resisting arrest.
B.
In December 2011, Mr. Morgan brought this civil action
against the defendants in the United States District Court for
the Northern District of Illinois. He asserted claims against
the arresting officers under 42 U.S.C. § 1983, alleging that the
officers had unlawfully stopped, falsely arrested, and used
excessive force against him. He also alleged that they had con‐
spired to deprive him of his constitutional rights. Addition‐
ally, Mr. Morgan asserted several state‐law claims against the
officers as well as the City of Chicago.
Mr. Morgan’s case then proceeded to trial. In September
2013, the parties filed a joint proposed pretrial order as well
as several dozen motions in limine. In particular, the defend‐
ants requested that the district court bar evidence that, at
Mr. Morgan’s preliminary hearing, the state court had en‐
tered a finding of “no probable cause” as to the possession of
a controlled substance charge because this finding rested on a
stricter standard of proof than probable cause to arrest.1
1 R.57 at 10. Specifically, the defendants argued that “the Illinois prelimi‐
nary examination statute requires a judge to determine from the evidence
before the court ‘if it appears [that] there is probable cause to believe an
offense has been committed by the defendant …’ 725 ILCS § 5/109–
3(a)(emphasis added), not whether there was probable cause for the ar‐
rest.” Id. (alteration in original). We have recognized this difference be‐
tween the standard set forth in the Illinois preliminary examination statute
4 No. 14‐3307
Mr. Morgan then moved to set a pretrial conference; the court
granted the motion but never held a pretrial conference.
On the morning of the first day of trial, the parties brought
to the court’s attention the pending motions in limine. The
court declined to address them; it explained that “during the
course of the trial the Court will rule on motions as they are
made” and directed the parties to “avoid any issue that is the
subject of a motion in limine” during opening statements.2
The court then proceeded to jury selection. It provided a
brief overview of the case to the venire, including the name of
the parties, the nature of the claims, and the fact that Mr. Mor‐
gan had been arrested on May 2, 2011, near 77th and South
Greenwood Avenue in Chicago. The court then called twelve
members of the venire for voir dire and questioned them
about their place of residence, marital status, number of chil‐
dren, prior jury service, and whether they were capable of be‐
ing fair and impartial. The court excused one prospective ju‐
ror on its own initiative; it then allowed the parties to ask ad‐
ditional questions of the panel.
After the parties had completed their questioning of the
first twelve venirepersons, the court entertained challenges to
specific potential jurors and stated that each party would be
allowed three peremptory challenges. Mr. Morgan sought to
remove two prospective jurors for cause. He challenged Juror
Ten because she had several family members in law enforce‐
and the standard for probable cause to arrest. See Williams v. Kobel, 789
F.2d 463, 470 (7th Cir. 1986).
2 R.115‐1 at 3–4; see also id. at 81–82.
No. 14‐3307 5
ment and had stated that she was not sure if she could be im‐
partial; the district court granted the challenge. Mr. Morgan
also challenged Juror Five, who had stated that she was
friends with a police officer who had told her “stories about
people in Chicago of color—nothing against you—white,
blacks—and what they have on them when they stop them.”3
When asked by the district court whether she could put aside
what she had heard from her friend and be fair and impartial
in this case, Juror Five had responded, “I think so.”4 After
Mr. Morgan’s challenge, the district court asked for a re‐
sponse from the defendants’ counsel, who replied, “I think
[Juror Five] indicated that despite what she … has learned
through her friend, she could be fair and impartial.”5 The
court granted Mr. Morgan’s challenge of Juror Five for cause.
Mr. Morgan also used peremptory challenges to strike two
additional members of the first panel.
The defendants also challenged two members of the first
panel for cause, Jurors Nine and Seven. Juror Nine lived on
the south side of Chicago; when asked if she was familiar with
the area of the 7700 block of South Greenwood Avenue, Juror
Nine stated that she was and that she “live[d] not far away.”6
Juror Seven, in response to the same question, responded, “I
know the area,” and, “I have a couple of friends that live in
3 Id. at 36.
4 Id.
5 Id. at 48.
6 Id. at 44.
6 No. 14‐3307
that area. Friend.”7 The defendants argued that the two pro‐
spective jurors should be removed because “th[e] case should
be decided by people that have no familiarity with the area or
may have contacts in any way.”8 The district court denied
both challenges on the ground that a juror’s familiarity with
an area is not enough to support a challenge for cause. The
defendants then exercised two of their peremptory challenges
to strike Jurors Nine and Seven. Mr. Morgan objected to these
strikes under Batson v. Kentucky, 476 U.S. 79 (1986), noting that
both Jurors Nine and Seven were African‐American. The
court responded that the defendants had “already stated a
race‐neutral basis for exercising the peremptory challenge”—
familiarity with the neighborhood and contacts with neigh‐
borhood residents—and that it found this to be “a sufficient
showing of a nondiscriminatory basis for the” strikes.9 The
court therefore overruled Mr. Morgan’s Batson objection.
The court then called another eight venirepersons for voir
dire and again excused one juror on its own initiative. Both
parties used their one remaining peremptory challenge, and
the court seated the remaining jurors. Of those jurors, two—
Jurors Six and Nineteen—were African‐American, and both
were seated without objection by either party.
Following the parties’ opening statements, Mr. Morgan
was the first to take the witness stand. He testified that he and
four of his friends arrived at his cousin’s home at 7746 South
Greenwood Avenue to watch a Chicago Bulls game shortly
7 Id. at 45.
8 Id. at 49–50.
9 Id. at 51.
No. 14‐3307 7
before 7:00 p.m. on May 2, 2011. After standing outside the
front gate of the house and talking for about twenty minutes,
Mr. Morgan’s friends headed toward the house to go inside.
Mr. Morgan, however, walked across the street to his truck to
retrieve his MP3 player. Then, Mr. Morgan testified, as he was
starting to cross the street to go back to the house, he saw a
car approaching and moved quickly across the street “to
avoid from getting hit.”10 Mr. Morgan then entered through
the front gate into his cousin’s yard and closed the gate be‐
hind him. At that point, Mr. Morgan testified, he “heard a
loud screech” that “sounded like some brakes on the car” and
people yelling “[f]reeze” and telling him to open the gate.11
Mr. Morgan stated that he did not open the gate because he
was nervous and did not want to be involved with the police.
Mr. Morgan then walked on a gangway along the side of his
cousin’s house, but, after progressing half of the way, turned
around and proceeded to walk back toward the front of the
house. At this point, a police officer drew his weapon and or‐
dered Mr. Morgan to freeze. Mr. Morgan complied with the
officer’s orders to lock his hands behind his head and lay flat
on the ground.
Mr. Morgan testified that another officer then jumped
over a chain‐link fence and onto his head while he was lying
on the ground. He stated that he lost consciousness for several
seconds and, when he regained it, realized that his lip had
been cut and his two front teeth broken. The officers then
handcuffed Mr. Morgan, lifted him over the chain‐link fence,
and placed him in the back of a police car. On the way to the
10 Id. at 106.
11 Id. at 108–09.
8 No. 14‐3307
police station, Mr. Morgan testified, he was told he would be
charged with possession of crack cocaine. After spending
some time in a conference room at the police station, Mr. Mor‐
gan was taken to the hospital where he received four stitches
in his upper lip and was informed that he had two fractured
teeth. He was also given pain medication and ibuprofen.
Mr. Morgan testified that he was next transported to the
county jail and placed in a holding cell. He then was taken to
state court and released on bond. Three weeks later, Mr. Mor‐
gan stated, he returned to state court, and the charges were
“dismissed by no probable cause.”12 Counsel for the defend‐
ants objected to this remark, and the court sustained the ob‐
jection because the state court’s finding of “no probable
cause” to prosecute the possession charge was the subject of
the defendants’ pending motion in limine.13
Mr. Morgan then proceeded to call each of the three de‐
fendant officers to testify, and their descriptions of the en‐
counter with Mr. Morgan differed from Mr. Morgan’s testi‐
mony in several significant respects. Lt. DeVries testified that
he was driving a police car accompanied by Sgt. Schulz and
Sgt. Tsoukalas, heading southbound on the 7700 block of
South Greenwood Avenue, when he saw Mr. Morgan stand‐
ing at the rear side of a parked vehicle. According to
Lt. DeVries, Mr. Morgan then “walked into the street in front
of our vehicle … and immediately looked in my direction and
grabbed his side” with his right hand.14 Sgt. Tsoukalas, who
12 Id. at 130.
13 Id.; see also R.57 at 10.
14 R.115‐1 at 190–91.
No. 14‐3307 9
was in the front passenger seat of the police car, and
Sgt. Schulz, who was seated in the rear seat of the car, also
testified that Mr. Morgan clutched his right side near his
waistband as he crossed the street. Lt. DeVries testified that
he believed, based on his experience, that Mr. Morgan had a
weapon. Lt. DeVries stated that he sped up to thirty‐five or
forty miles per hour in order to catch up with Mr. Morgan and
that Mr. Morgan then ran “full speed” into the yard through
the front gate, which slammed shut behind him.15 Lt. DeVries
then exited the vehicle to pursue Mr. Morgan on foot; he tried
to open the gate, but it was locked and, even after kicking the
gate handle, would not open. Lt. DeVries testified that, from
over a fence, he saw Mr. Morgan on the gangway next to the
house, drew his weapon, and yelled at Mr. Morgan to show
his hands. Sgt. Tsoukalas testified that as Mr. Morgan was
raising his hands, a small plastic bag fell to the ground.
According to Lt. DeVries, as Mr. Morgan was complying
with his commands, Sgt. Tsoukalas hopped over the
chain‐link fence and grabbed Mr. Morgan’s right arm to
handcuff him. Both Lt. DeVries and Sgt. Tsoukalas testified
that at this point Mr. Morgan was not on the ground but was
standing, that he lunged toward Sgt. Tsoukalas, and that Sgt.
Tsoukalas then performed a “take‐down” maneuver, which
caused both men to fall “face first” to the ground.16 Sgt. Schulz
testified that he saw Sgt. Tsoukalas and Mr. Morgan falling to
the ground and went to assist Sgt. Tsoukalas. At that point,
Sgt. Schulz stated, he saw on the ground next to Mr. Morgan
a clear plastic bag containing a white, rock‐like substance that
15 Id. at 194–95.
16 Id. at 201–02, 300–01.
10 No. 14‐3307
he believed to be crack cocaine. Lt. DeVries testified that he
searched the area for a weapon but never found one.
During Sgt. Schulz’s examination, the defendants’ counsel
sought to elicit testimony about the officer’s familiarity with
the location of Mr. Morgan’s arrest and the “sorts of experi‐
ences [the officer had] had in that block.”17 Mr. Morgan’s
counsel objected, and the district court overruled, stating that
“[w]hat the officers reasonably believed under the circum‐
stances is relevant.”18 At a sidebar, Mr. Morgan’s counsel ar‐
gued that such testimony was irrelevant, prejudicial, and
would be used by the jury to draw an impermissible propen‐
sity inference. The court again overruled the objection; it al‐
lowed Sgt. Schulz to testify as follows:
Q. Sergeant, I think when we took that break I
was asking you what your general knowledge
or experience is relating to 7700 South Green‐
wood. So if you could please just tell the ladies
and gentlemen of the jury?
A. In my ten‐plus years in the 6th District as a
sergeant of police, my experiences with the
block, numerous … narcotics calls, numerous
men with a gun or person with a gun calls, foot
chases, search warrants. Things of that nature.
17 Id. at 382.
18 Id.
No. 14‐3307 11
Q. So it’s fair to say that your previous experi‐
ences were relatively similar to the events that
occurred on May 2nd, 2011, is that correct?
[Mr. Morgan’s counsel]: Objection.
THE COURT: Overruled.
BY THE WITNESS:
A. Yes, sir.[19]
In addition to the three defendant officers, Mr. Morgan
called another four witnesses as part of his case‐in‐chief. One
of these witnesses was CPD Captain Ruth Wedster, the dis‐
trict watch commander on the night of the arrest. On cross‐ex‐
amination, Cpt. Wedster was asked about certain reports con‐
cerning Mr. Morgan’s arrest. Cpt. Wedster testified initially
that Captain Juan Morado had approved the reports, but, af‐
ter reviewing the arrest report to refresh her recollection, she
clarified that it was instead Sergeant Henry who had ap‐
proved them. When counsel for the defendants asked
Cpt. Wedster what Sgt. Henry had approved, she responded
“[p]robable cause.”20 Mr. Morgan’s counsel immediately ob‐
jected and moved to strike based on the defendants’ pending
motion in limine, and the court sustained the objection and
instructed the jury to “[d]isregard the last statement.”21
At the conclusion of the evidence, the parties rested their
cases and the court entertained several motions. Following ar‐
19 Id. at 384.
20 Id. at 478–79.
21 Id. at 479.
12 No. 14‐3307
gument on the motions, the court directed the parties to con‐
fer before the next court date and then provide a set of agreed
instructions and jury forms. When the court reconvened, the
parties had reached agreement on roughly thirty instructions
but had remaining disputes on another fifteen, and the court
heard arguments on the disputed instructions. During argu‐
ment, Mr. Morgan objected to one of the defendants’ pro‐
posed instructions on the ground that it “was just proposed
last night,” to which the court responded, “you’ve … had
22
months to work on this,” and overruled the objection.
After argument on the jury instructions, the parties pre‐
sented their closing arguments. The court then instructed the
jury on the applicable law and submitted Mr. Morgan’s
claims for decision. During the second day of deliberations,
the jury sent a note asking whether, in the context of an inves‐
tigatory stop, it is necessary for an officer to reasonably sus‐
pect an individual of “being connected with a crime or mis‐
demeanor … having committed a crime or misde‐
meanor … having information regarding a crime or misde‐
meanor [or] … intending to commit a crime or misde‐
meanor[.]”23 The parties submitted to the court an
agreed‐upon answer: “With respect to reasonable suspicion,
you must find that the defendant … had reasonable suspicion
that the plaintiff had committed or was about to commit a
crime.”24 The court, however, believed that the response was
not an accurate expression of the law and declined to give it,
22 Id. at 551–52.
23 Id. at 666.
24 Id. at 667.
No. 14‐3307 13
stating instead that it would give the following instruction:
An investigative stop is a brief detention which
gives police officers a chance to verify or dispel
well‐founded suspicions that a person has been,
is, or is about to be engaged in criminal activity.
Permissible encounters between police officers
and citizens are not limited to situations involv‐
ing possible criminal activity, but also include
situations in which persons may need help or
are in danger of harming themselves or others.
… In determining whether particular cir‐
cumstances rise to the level of a reasonable sus‐
picion, courts must look—must take into con‐
sideration the modes or patterns of operations
of certain kinds of law‐breakers which allow
trained officers to draw inferences and make de‐
ductions that might well elude an untrained
person.[25]
Mr. Morgan’s counsel objected that the jury already had been
instructed on reasonable suspicion and that the court’s in‐
struction “elaborates on things that aren’t really pertinent to
the question that the jury asked” and “goes far beyond what
they have already been instructed on.”26 The court overruled
the objection and gave its own response.
Ultimately, the jury returned a verdict for the defendants
on all claims. Mr. Morgan then filed a motion for a new trial,
25 Id. at 668.
26 Id. at 670.
14 No. 14‐3307
contending that (1) his right to equal protection had been vi‐
olated by the defendants’ racially motivated use of peremp‐
tory strikes, and (2) the court had committed multiple proce‐
dural and substantive errors that had deprived him of a fair
trial. The district court denied Mr. Morgan’s motion for a new
trial, explaining that it found the defendants’ rationale for the
peremptory strikes to be “credible, honest, and race‐neutral,”
and that the alleged errors did not, individually or cumula‐
tively, render his trial unfair.27
Mr. Morgan now appeals the district court’s decision, rais‐
ing both of the arguments that he presented in his motion for
a new trial.
II
DISCUSSION
A. Batson Claim
It is well established that “[p]urposeful racial discrimina‐
tion in selection of the venire violates a defendant’s right to
equal protection.” Batson, 476 U.S. at 86. Indeed, the racially
discriminatory exclusion of even one potential juror requires
reversal. Snyder v. Louisiana, 552 U.S. 472, 478 (2008). Batson
has been extended to and applies identically in the civil con‐
text. See Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614,
616 (1991); Doe v. Burnham, 6 F.3d 476, 481 (7th Cir. 1993).
When evaluating a Batson objection to a peremptory strike,
the trial court engages in a three‐step analysis. Miller‐El v.
27 R.108 at 6, 10.
No. 14‐3307 15
Cockrell (“Miller‐El I”), 537 U.S. 322, 328–29 (2003). First, it de‐
termines whether the strike’s opponent has made a prima fa‐
cie showing that the strike was exercised on the basis of race.
Id. at 328; see also United States v. Stephens (“Stephens I”), 421
F.3d 503, 512 (7th Cir. 2005) (“[T]he burden at the prima facie
stage is low, requiring only circumstances raising a suspicion
that discrimination occurred.”). If that showing has been
made, the burden of production shifts to the strike’s propo‐
nent to present a nondiscriminatory explanation for striking
the juror. Miller‐El I, 537 U.S. at 328. At this second step, nearly
“any race‐neutral reason” will suffice, “even if it is not a ‘per‐
suasive, or even plausible’ reason.” Coulter v. McCann, 484
F.3d 459, 465 (7th Cir. 2007) (quoting Purkett v. Elem, 514 U.S.
765, 768 (1995)). Finally, at the third step, the trial court
“weigh[s] the evidence and determine[s] whether the … non‐
discriminatory reason for the strike is credible or if the [oppo‐
nent of the strike] has shown purposeful discrimination.” Id.
At this step, the court evaluates the persuasiveness of the ten‐
dered race‐neutral justification and decides whether it is gen‐
uine or pretextual. See Miller‐El v. Dretke, (“Miller‐El II”), 545
U.S. 231, 239–41 (2005).
The parties do not dispute that the first two steps of the
Batson inquiry were satisfied here. The district court con‐
cluded that Mr. Morgan had met his limited burden of mak‐
ing a prima facie showing of racial motivation, and the de‐
fendants do not challenge this finding. Similarly, Mr. Morgan
does not dispute the court’s conclusion that the defendants
provided a facially race‐neutral justification for striking Ju‐
rors Seven and Nine, i.e., that both jurors lived near or had
contacts with the block where Mr. Morgan was arrested. Con‐
16 No. 14‐3307
sequently, our focus is limited to the district court’s determi‐
nation that the defendants’ race‐neutral justification was gen‐
uine and not pretextual.
1.
In the third step of the Batson analysis, “the critical ques‐
tion … is the persuasiveness of the [race‐neutral] justification
for [the] peremptory strike,” which “comes down
to … credib[ility].” Miller‐El I, 537 U.S. at 338–39. In order to
assess counsel’s credibility, the trial court must “undertake a
sensitive inquiry into such circumstantial and direct evidence
of intent as may be available.” Batson, 476 U.S. at 93 (internal
quotation marks omitted). Because this determination is in‐
herently fact intensive, it “lies peculiarly within a trial judge’s
province” and, therefore, “represents a finding of fact of the
sort accorded great deference on appeal.” Hernandez v. New
York, 500 U.S. 352, 364–65 (1991) (internal quotation marks
omitted); United States v. Taylor, 509 F.3d 839, 845 (7th Cir.
2007) (“Only the district judge, who observed the voir dire
firsthand, can make that determination in the first instance.”).
Accordingly, we will reverse under step three only if the
court’s findings on the issue of credibility are clearly errone‐
ous. Taylor, 509 F.3d at 843.
Mr. Morgan contends that, in conducting the third step of
the Batson inquiry, the district court erred in two ways. First,
Mr. Morgan asserts that, as a procedural matter, the court
erred by failing to hold a separate evidentiary hearing for the
purpose of evaluating credibility. Second, Mr. Morgan chal‐
No. 14‐3307 17
lenges the court’s credibility determination on the merits, ar‐
guing that the court clearly erred in finding that the defend‐
ants’ proffered race‐neutral justification was genuine.
a. Batson Step Three Procedures
i. Necessity of Evidentiary Hearing
Mr. Morgan asserts that it was “procedurally improper”
for the district court not to hold an evidentiary hearing on the
28
issue of credibility. Importantly, Mr. Morgan does not con‐
tend, and the voir dire transcript does not indicate, that, at the
time he made his Batson objection, he requested and was de‐
nied the opportunity to present additional evidence of dis‐
criminatory motive. Rather, Mr. Morgan’s argument is that,
by failing to hold a hearing sua sponte at this juncture, the
court necessarily committed reversible error.
Our case law does not support Mr. Morgan’s position. At
Batson step three, the opponent of a peremptory strike is per‐
mitted to “offer additional evidence to demonstrate that the
proffered justification was pretextual.” Stephens I, 421 F.3d at
510. However, recognizing both that the scope of the credibil‐
ity inquiry is limited to an assessment of counsel’s honesty
and that “[t]here will seldom be much evidence bearing on
[the credibility] issue,” Hernandez, 500 U.S. at 365, we have
held that “the procedures required in assessing counsel’s mo‐
tive are limited as well,” Lamon v. Boatwright, 467 F.3d 1097,
1101–02 (7th Cir. 2006); see also Batson, 476 U.S. at 99 (expressly
declining to “formulate particular procedures to be followed”
after a Batson objection). We therefore do not require that trial
28 Appellant’s Br. 20.
18 No. 14‐3307
courts employ “evidentiary proceedings which would be un‐
likely to produce evidence bearing on counsel’s credibility.”
Lamon, 467 F.3d at 1102 (affirming denial of request to “call
stricken panelists as witnesses and question them during a
Batson hearing” because it “would not have shed light on
whether the prosecutor honestly believed” the race‐neutral rea‐
son (emphasis in original)); Williams v. Chrans, 957 F.2d 487,
29
491 (7th Cir. 1992) (same).
Here, Mr. Morgan “had the opportunity to discredit” the
defendants after they had provided their race‐neutral justifi‐
cation. Lamon, 467 F.3d at 1102. Because he did not offer any
additional evidence that would have necessitated a separate
credibility hearing—and because the district court was under
no affirmative obligation to conduct one in the absence of
such a request—there was no procedural error under Batson’s
third step.
ii. Necessity of Credibility Findings
Although our cases do not mandate an evidentiary hear‐
ing in all situations, the trial court is required to provide more
than a conclusory estimation of counsel’s credibility. Batson’s
third step represents the culmination of a framework “de‐
signed to produce actual answers to suspicions and inferences
that discrimination may have infected the jury selection pro‐
cess,” Johnson v. California, 545 U.S. 162, 172 (2005) (emphasis
29 Cf. Davis v. Ayala, 135 S. Ct. 2187, 2194, 2201 (2015) (rejecting argument
that it was procedurally improper for trial court to conduct credibility de‐
termination “outside the presence of the defense” because “there [was] no
reason to think that defense counsel could have pointed to” sufficient ev‐
idence to undermine the prosecutor’s credibility).
No. 14‐3307 19
added). Distinguishing the genuine from the racially pre‐
textual constitutes the “decisive question” in the analysis.
Hernandez, 500 U.S. at 365. The trial court must, therefore, pro‐
vide us with something to review. Taylor, 509 F.3d at 845
(“Without the court’s explanation for upholding the
strike … we have nothing to review.”); see also United States v.
Stephens (“Stephens II”), 514 F.3d 703, 712 (7th Cir. 2008)
(“[D]eference is due only when a district court properly per‐
forms its task in the first instance.”). Indeed, as our colleagues
on the First Circuit have recognized,
[i]ndicating [credibility] findings on the record
has several salutary effects. First, it fosters con‐
fidence in the administration of justice without
racial animus. Second, it eases appellate review
of a trial court’s Batson ruling. Most im‐
portantly, it ensures that the trial court has in‐
deed made the crucial credibility determination
that is afforded such great respect on appeal.
United States v. Perez, 35 F.3d 632, 636 (1st Cir. 1994).
There are two primary bases upon which a court may eval‐
uate the genuineness of a proffered race‐neutral justification.
First, a party may base its peremptory strike on subjective in‐
dicators, most commonly the demeanor of the juror in ques‐
tion. “Where the proffered race‐neutral reason for a strike is
limited to the juror’s demeanor,” the trial court may rely on
the demeanor of the strike’s proponent as well as “whether
the juror’s demeanor can credibly be said to have exhibited
the basis for the strike.” United States v. Rutledge, 648 F.3d 555,
559 (7th Cir. 2011) (quoting Snyder, 552 U.S. at 477); see also
Hernandez, 500 U.S. at 365 (“[T]he best evidence often will be
the demeanor of the attorney who exercises the challenge.”).
20 No. 14‐3307
Second, the trial court may consider additional, objective
evidence introduced to “demonstrate that the proffered justi‐
fication was pre‐textual or to otherwise establish that the per‐
emptory strike was motivated by a discriminatory purpose.”
United States v. Corley, 519 F.3d 716, 720–21 (7th Cir. 2008)
(providing, as examples, evidence of a pattern of strikes
against a particular racial minority, disparate questioning
during voir dire, and comparative juror analysis); see also Ste‐
phens II, 514 F.3d at 711 (“Credibility may also be evaluated
by considering the offering party’s consistency in applying its
non‐discriminatory justification.”).
When the stated basis for a strike is predicated on subjec‐
tive evidence like the juror’s demeanor, we typically have
held that a trial court clearly errs by neglecting to state ex‐
pressly its credibility findings on the record. For example, in
United States v. McMath, 559 F.3d 657 (7th Cir. 2009), the de‐
fendant objected under Batson to the prosecution’s exercise of
a peremptory strike based on a juror’s facial expression,
which “looked angry and not happy to be here,” and the dis‐
trict court overruled the objection “without comment on the
matter.” Id. at 661, 663. Relying on the Supreme Court’s deci‐
sion in Snyder v. Louisiana, 552 U.S. 472 (2008), which held that
a reviewing court cannot presume that the trial court credited
a demeanor‐based rationale where the trial court simply al‐
lowed the strike without explanation, we explained that the
trial court’s failure to assess explicitly counsel’s motivation in
striking the juror created a “void in the record that d[id] not
allow us to affirm the denial.” Id. at 666. We held, therefore,
“that the district court clearly erred in denying the Batson
challenge without making findings regarding the credibility
of the proffered race‐neutral justification for the strike,” and
we remanded the case for further findings. Id.; see also Snyder,
No. 14‐3307 21
552 U.S. at 477 (noting that, particularly where the stated basis
for a strike “invoke[s] a juror’s demeanor (e.g., nervousness,
inattention), … the trial court’s firsthand observations [are] of
even greater importance”); McCurdy v. Montgomery Cty., 240
F.3d 512, 521 (6th Cir. 2001) (“The need for an explicit, on‐the‐
record analysis of each of the elements of a Batson challenge
is especially important when the purported race‐neutral jus‐
tification is predicated on subjective explanations like body
language or demeanor.”).30
Where the trial court was presented objective, non‐de‐
meanor evidence that the stated rationale for a strike was ille‐
gitimate, our earlier cases exhibited an analysis tailored to the
record before us. For example, in United States v. Corley, 519
F.3d 716 (7th Cir. 2008), the prosecution presented a nondis‐
criminatory basis for striking a juror, and the defendant ar‐
gued in response “that similarly‐situated white jurors were
treated differently.” Id. at 722. The trial court allowed the per‐
emptory strike but failed to articulate its reasoning. Id. at 722–
23. Affirming, we explained that
[a]lthough it would be more helpful for the dis‐
trict courts in these Batson cases to explicitly
make credibility determinations, and perhaps
state on the record the basis for rejecting the
30 As the Fifth Circuit has noted, “[t]he circuits have disagreed on the ex‐
tent to which Snyder imposes an affirmative duty on the district court to
make record findings where the prosecutor has offered only a demeanor‐
based justification.” United States v. Thompson, 735 F.3d 291, 300 (5th Cir.
2013) (surveying circuit split and agreeing with Eleventh Circuit’s ap‐
proach “that Snyder does not require a district court to make record find‐
ings of a juror’s demeanor where the prosecutor justifies the strike based
on demeanor alone”).
22 No. 14‐3307
comparisons with similarly‐situated jurors,
there is no ambiguity in this record. The court
accepted the government’s argument, that de‐
termination is supported by the record, and it is
not clearly erroneous.
Id. at 723; see also U.S. Xpress Enters., Inc. v. J.B. Hunt Transp.,
Inc., 320 F.3d 809, 814 (8th Cir. 2003) (“[T]he record ade‐
quately discloses a full Batson analysis, and we find that the
failure of the trial judge to articulate his analysis of step three
on the record did not constitute clear error.”). In United States
v. Taylor, 509 F.3d 839 (7th Cir. 2007), on the other hand, we
reached the opposite conclusion. In that case, we observed
that “the defendants ha[d] made a strong case,” based on
comparative evidence, that the Government had exercised its
peremptory strike on a racially discriminatory basis. Id. at 845.
Nevertheless, because the record was “silent as to the district
court’s rationale for denying defendants’ Batson challenge,”
we remanded the case “for the limited purpose of supple‐
menting the record with [the court’s] findings about whether
the government’s stated reason for exercising a peremptory
challenge … [was] credible.” Id. at 845–46.
Our recent decision in United States v. Rutledge, 648 F.3d
555 (7th Cir. 2011), made clear that, at bottom, we have a core
concern in all third‐prong Batson situations, no matter what
their particular circumstances. In Rutledge, the defendant
raised Batson objections to the prosecution’s peremptory
strikes of two African‐American venirepersons, and the pros‐
ecution offered two distinct race‐neutral justifications. The
prosecution’s reason for striking the first prospective juror
was that she exhibited an “agitated” and “frustrated” dispo‐
No. 14‐3307 23
sition during voir dire; defense counsel disputed this de‐
meanor‐based rationale. Id. at 557. As to the second prospec‐
tive juror, the prosecution explained that the panelist had ex‐
pressed his own personal concern about being racially stere‐
otyped by other jurors, and defense counsel challenged this
rationale as pretextual. Id. The district court overruled both
Batson objections but failed to articulate its credibility deter‐
minations for either. Id. at 558.
Addressing the demeanor‐based strike first, we explained,
building on McMath, that
[t]he trial court must evaluate not only whether
the prosecutor’s demeanor belies a discrimina‐
tory intent, but also whether the juror’s de‐
meanor can credibly be said to have exhibited
the basis for the strike attributed to the juror by
the prosecutor. These findings must be explicit;
without them there is a void that stymies appel‐
late review, gives us no finding of fact to which
we might defer, and ultimately precludes us
from affirming the denial of the Batson chal‐
lenge.
Id. at 560 (citations omitted) (internal quotation marks omit‐
ted). We then applied this reasoning “with equal force” to the
non‐demeanor‐based second strike, explaining that in such
cases it was likewise “essential” that the trial court make an
express credibility determination. Id. at 561. In both situa‐
tions, we explained,
if there is nothing in the record reflecting the
trial court’s decision, then there is nothing to
which we can defer. That is why the third step
24 No. 14‐3307
under Batson requires the court to weigh the evi‐
dence and determine whether the prosecution’s
nondiscriminatory reason for the strike is credi‐
ble or if the defense has shown purposeful dis‐
crimination.
Id. at 559 (emphasis in original) (citations omitted) (internal
quotation marks omitted). We therefore “conclude[d] that a
remand [was] necessary for the district court to make explicit
credibility findings for both jurors.” Id. at 560.
Given the “pivotal role” that the trial court’s credibility de‐
termination plays in the proper functioning of the Batson
framework, Snyder, 552 U.S. at 477, trial courts should state
fully their credibility determinations on the record so that
such findings may receive the substantial deference to which
they are entitled. Otherwise, “when we confront an eviden‐
tiary gap at step three,” we generally will not resolve the Bat‐
son issue without first remanding the case to “find out what
the district court perceived.” Rutledge, 648 F.3d at 560 (internal
quotation marks omitted).
Here, the district court, in its order denying a new trial,
considered explicitly and in detail the genuineness of the de‐
fendants’ proffered nondiscriminatory rationale—familiarity
with the block where Mr. Morgan was arrested. Specifically,
the court compared Jurors Nine and Seven, the jurors struck
by the defendants, to “similarly‐situated jurors who were per‐
31
mitted to serve on the” jury. Jurors Six and Nineteen, the
court explained, were African‐Americans who did not live ge‐
31 R.108 at 5–6.
No. 14‐3307 25
ographically close to the location of the arrest and were se‐
lected for the jury without challenge. Moreover, the remain‐
ing potential jurors all either “lived outside Chicago in vari‐
ous suburban municipalities” or lived in the city but “gave no
indication that they were familiar [with] the area where the
32
incident occurred.” The court therefore determined that the
defendants’ proffered rationale “only applied to the two pan‐
33
elists that were stricken.” Consequently, it found “no evi‐
dence tending to prove purposeful discrimination,” and it
concluded “that Defendants’ reasons for its peremptory
strikes, at the time they were initially challenged [were] cred‐
34
ible, honest, and race‐neutral.” We are satisfied that the
court’s analysis provides ample basis for us to afford signifi‐
cant deference to its credibility determination.
Notably, the district court’s explanation came in its denial
of Mr. Morgan’s motion for a new trial rather than during voir
dire. At the time Mr. Morgan raised his Batson objections, the
court said only that “[t]he defendants have already stated a
race‐neutral basis for exercising the peremptory chal‐
lenge … which is familiarity with the neighborhood and hav‐
ing friends there. So I think that is a sufficient showing of a
35
non‐discriminatory basis for the peremptory challenge.” It
was not until Mr. Morgan filed a motion for a new trial that
32 Id. at 6.
33 Id.
34 Id.
35 R.115‐1 at 51.
26 No. 14‐3307
the court actually articulated in full its rationale for finding
the race‐neutral justification credible.
We have not confronted this situation before. However,
the Sixth Circuit has held, on similar facts to the present case,
that a trial court’s posttrial articulation of its credibility deter‐
mination is sufficient. In McCurdy v. Montgomery County, 240
F.3d 512 (6th Cir. 2001), the district court, during voir dire,
denied the plaintiff’s Batson challenge without comment. 240
F.3d at 520. In his motion for a new trial, the plaintiff restated
his Batson objection, and the court, in denying the motion, ex‐
plained that it agreed with the race‐neutral justification that
had been provided at the time of the peremptory strike. Id. at
521. Upon review, the Sixth Circuit “underscore[d] that the
district court’s initial reaction to [the plaintiff]’s Batson claim,
in which it perfunctorily accepted the County’s race‐neutral
explanation, did not conform to the requirement that the dis‐
trict court make expressed findings on each of the elements of
a Batson claim.” Id. at 521–22 (citation omitted). Nevertheless,
it held that because the court had “ultimately engaged in the
constitutionally required analysis,” it was appropriate to de‐
fer to its Batson findings. Id. at 522; see also United States v. Cecil,
615 F.3d 678, 686 (6th Cir. 2010) (applying McCurdy where the
district court initially denied Batson challenge in perfunctory
manner but went on to “hear[] additional argument and
ma[ke] its own findings with respect to the plausibility of the
government’s explanation”).
The approach of our colleagues in the Sixth Circuit to the
situation we now confront is, we note, compatible with our
usual approach in cases where on‐the‐record credibility find‐
ings are lacking; we remand the case and allow the trial court
No. 14‐3307 27
36
to supplement the record. Because we are concerned solely
with the substance of the trial court’s credibility determina‐
tion, the timing of the explanation for its decision does not
bear on its adequacy.37 Nevertheless, we think it highly pref‐
erable that a trial court place its credibility analysis on the rec‐
ord at the time it initially rules on the objection. We therefore
agree with the Sixth Circuit that a trial court’s explanation in
disposing of a posttrial motion is sufficient in the situation be‐
fore us.
36 See United States v. Rutledge, 648 F.3d 555, 557 (7th Cir. 2011) (remanding
based on district court’s denial of a Batson challenge “without making any
finding on the prosecutor’s credibility”); United States v. McMath, 559 F.3d
657, 666 (7th Cir. 2009) (remanding based on district court’s “summary
denial” of Batson challenge in which it made no credibility findings);
United States v. Taylor, 509 F.3d 839, 845 (7th Cir. 2007) (remanding the case
“for the limited purpose of supplementing the record with” the district
court’s credibility findings).
37 Indeed, in the habeas context we have been willing to remand cases
based on inadequacies in the trial court’s Batson analysis decades after jury
selection. See, e.g., Hooper v. Ryan, 729 F.3d 782, 787 (7th Cir. 2013) (remand‐
ing for a credibility determination although “[i]t seems unlikely that this
can be done 32 years after the trial”); Harris v. Hardy, 680 F.3d 942, 965–66
(7th Cir. 2012) (remanding and noting that although “[w]e are well aware
that the crimes with which Harris was charged occurred almost 30 years
ago … the passage of time is not a basis for overlooking the prosecutors’
violations of the Equal Protection Clause” (internal quotation marks omit‐
ted)); Jordan v. Lefevre, 206 F.3d 196, 202 (2d Cir. 2000) (“We therefore direct
the district court to, in its discretion, hold a hearing to reconstruct the pros‐
ecutor’s state of mind at the time of jury selection, or if the passage of nine
years since Jordan’s trial and other circumstances should have made such
a determination impossible or unsatisfactory, to order that the state grant
Jordan a new trial.”).
28 No. 14‐3307
In sum, we are convinced that the district court in this case
fulfilled its responsibilities under the Batson framework; we
therefore review its credibility determination under the famil‐
iar clear error standard.
b. Substantive Credibility Determination
38
Mr. Morgan contends that the district court clearly erred
in finding that the defendants’ race‐neutral explanation for
striking Jurors Seven and Nine was “honest and credible” and
39
“not pretext for discrimination.” In Mr. Morgan’s view, this
determination was clearly erroneous because: (1) the defend‐
ants’ proffered nondiscriminatory rationale is inherently or
presumptively pretextual based on its racially disproportion‐
ate impact, and (2) the defendants’ differential treatment of
prospective jurors during voir dire provides sufficient evi‐
dence of their racially discriminatory purpose. We address
these contentions in turn, keeping in mind that “the ultimate
38 In his brief, Mr. Morgan urges that “[t]he standard of review is de novo
as at the time of the strikes the District Court never made a record as to
the credibility of the defendants’ justifications.” Appellant’s Br. 7. The Su‐
preme Court has explained, however, that the credibility determination is
a “pure issue of fact,” Hernandez v. New York, 500 U.S. 352, 364 (1991), and
deference is “necessary because a reviewing court, which analyzes only
the transcripts from voir dire, is not as well positioned as the trial court is
to make credibility determinations,” Miller‐El v. Cockrell (“Miller‐El I”), 537
U.S. 322, 339 (2003). This rationale for appellate deference applies with
equal force whether the trial court made its credibility determination at
the time of the objection or, as here, in a posttrial order.
39 R.108 at 5.
No. 14‐3307 29
burden of persuasion regarding racial motivation rests with,
and never shifts from,” Mr. Morgan. Purkett, 514 U.S. at 768.
i. Discriminatory Impact
Mr. Morgan first contends that the race‐neutral basis for
the defendants’ peremptory strikes—familiarity with the lo‐
cation of Mr. Morgan’s arrest—is inherently pretextual be‐
cause “the practical reality is this rationale would effectively
mean that Defendants would only strike African‐American
venirepersons due to the demographics of the South Side of
40
Chicago.”
At the outset, we note that Mr. Morgan’s position is diffi‐
cult to maintain in light of the Supreme Court’s pronounce‐
ment that disparate racial impact, although relevant, is alone
insufficient to establish purposeful discrimination under Bat‐
son. Hernandez, 500 U.S. at 359–60. Rather, “[p]roof of racially
discriminatory intent or purpose is required.” Id. (internal
41
quotation marks omitted). Acknowledging this principle,
40 Appellant’s Br. 10.
41 We note that some Batson claims involve the presentation of statistical
evidence concerning a party’s use of peremptory challenges as a means
through which the court may infer discriminatory intent. See, e.g., Hernan‐
dez, 500 U.S. at 363 (“[A]n invidious discriminatory purpose may often be
inferred from the totality of the relevant facts, including the fact, if it is
true, that the [classification] bears more heavily on one race than another.”
(alterations in original) (quoting Washington v. Davis, 426 U.S. 229, 242
(1976))); Harris, 680 F.3d at 951; see also Miller‐El I, 537 U.S. at 342 (“In this
case, the statistical evidence alone raises some debate as to whether the
30 No. 14‐3307
Mr. Morgan invites our attention to United States v. Briscoe,
896 F.2d 1476 (7th Cir. 1990). In Briscoe, an African‐American
venireperson testified on voir dire “that during the last five
years he had resided at three different addresses on the west
side of Chicago.” 896 F.2d at 1488. The Government sought to
peremptorily strike the panelist, arguing that all three ad‐
dresses were “geographically close” to the addresses of two
individuals scheduled to testify in the case and that it would
impair the Government’s interests to “allow[] a juror who
somehow may be personally familiar with, if not the people
involved, certainly the area involved where these events have
taken place.” Id. (internal quotation marks omitted). The dis‐
trict court found this justification to be credible, and we af‐
firmed. Id. In doing so, we noted our “cognizan[ce] of the fact
that the west side of Chicago is predominantly black and that
exclusion of jurors based solely on their residence in this area
of the city could be a pretext for discrimination.” Id. We held,
however, that the Government’s explanation had gone “well
beyond a cursory statement that [the potential juror] resided
on the west side of Chicago” and had in fact “explicitly
stated” that his last three residences were “geographically
close to the addresses of” the scheduled witnesses. Id. at 1488–
89.
Mr. Morgan points to our brief aside in Briscoe that the “ex‐
clusion of jurors based solely on their residence … could be a
pretext for discrimination.” Id. at 1488 (emphasis added). This
prosecution acted with a race‐based reason when striking prospective ju‐
rors.”). Mr. Morgan has not provided any such empirical basis for his ar‐
gument.
No. 14‐3307 31
language, he argues, places a heightened burden on “attor‐
ney[s] using residence as a rationale for striking a venireper‐
son” and, in this context at least, permits an inference of racial
motivation unless counsel provides a “juror specific” basis for
42
the strike. We cannot accept Mr. Morgan’s interpretation. In
Briscoe, we recognized that the Government had a genuine in‐
terest in removing venirepersons “personally familiar with, if
not the people involved, certainly the area involved.” 896 F.2d
at 1488. “[I]t is quite likely,” we said, “that [the potential juror]
might very well have been familiar with, if not [the witness]
herself, the individuals involved … thus justifying the gov‐
ernment’s peremptory challenge.” Id. We therefore concluded
that the district court correctly accepted the Government’s
stated basis for striking the juror. We said nothing in Briscoe,
however, of imposing a heightened burden on parties seeking
to remove a venireperson on the basis of residency, nor could
we have, as such a burden would go inappropriately to the
accuracy of the rationale rather than the genuineness of the
motive.
The district court in this case found that the defendants’
proffered race‐neutral reason, like the Government’s in Bris‐
coe, “went well beyond a cursory statement” concerning the
prospective jurors’ residency, and, therefore, was “honest and
43
credible.” There is certainly an adequate basis for that find‐
ing. When Juror Nine was asked during voir dire whether she
42 Appellant’s Br. 11.
43 R.108 at 5 (quoting United States v. Briscoe, 896 F.3d 1476, 1488–89 (7th
Cir. 1990)).
32 No. 14‐3307
was familiar with the location of Mr. Morgan’s arrest, she re‐
44
sponded, “Yes, I am. … I live not far away.” To the same
question, Juror Seven also answered in the affirmative, add‐
45
ing that she had “a couple of friends that live in that area.”
The record shows that Mr. Morgan’s pretrial witness list in‐
cluded three individuals who were with him at 7746 South
Greenwood Avenue at the time of his arrest, two of whom
46
lived within a block of that address. Given their answers,
and the limited area occupied by a single city block, a signifi‐
cant possibility existed that one or both of the prospective ju‐
rors “might very well have been familiar with, if not [the wit‐
nesses themselves], the individuals involved” in Mr. Mor‐
gan’s arrest. Briscoe, 896 F.2d at 1488; see also Dunham v. Frank’s
Nursery & Crafts, Inc., 967 F.2d 1121, 1126 (7th Cir. 1992) (af‐
firming denial of Batson challenge because “there was at least
the potential that [the prospective juror] may have been a
friend of a friend of the Plaintiffs” (internal quotation marks
47
omitted)). Indeed, it was this precise concern that counsel for
44 R.115‐1 at 44.
45 Id. at 45.
46 R.56 at 13–14.
47 Mr. Morgan takes issue with defense counsel’s failure to inquire to
greater depth the extent of the two prospective jurors’ familiarity with the
area. Appellant’s Br. 14–15. In light of the already apparent potential for
juror bias, however, we see no reason to attach analytical significance to
counsel’s failure to pursue this line of questioning further. Cf. United States
v. Brown, 809 F.3d 371, 375 (7th Cir. 2016) (expressing “skeptic[ism] as to
whether the failure to ask a follow‐up question … suggests pretext”).
No. 14‐3307 33
the defendants “explicitly stated,” Briscoe, 896 F.2d at 1489, to
the district court:
I think this case should be decided by people
that have no familiarity with the area or may
have contacts in any way.
The evidence is going to show that the plain‐
tiff has a number of friends in that area, and
they were present. They were there, and [Juror
Nine] lives in that particular area, [and] may
have some knowledge through others of this
particular incident.[48]
Finally, we note that although familiarity with the block
may not have been sufficient to justify removing these pro‐
spective jurors for cause—indeed, the district court rejected
this rationale as “not enough to support a challenge for
49
cause” —“[u]nlike a challenge for cause, a peremptory strike
need not be based on a strong or good reason, only founded
on a reason other than race.” United States v. Smallwood, 188
F.3d 905, 915 (7th Cir. 1999) (internal quotation marks omit‐
ted); accord Batson, 476 U.S. at 97 (“[T]he prosecutor’s expla‐
nation need not rise to the level justifying exercise of a chal‐
lenge for cause.”).
48 R.115‐1 at 49; see also id. at 50 (providing the same reason for striking
Juror Seven).
49 Id. at 49; see also id. at 50 (denying challenge for cause of Juror Seven
because “she hasn’t indicated that she knows any people particularly in‐
volved in the case” and “it is not enough to support a challenge for cause
based upon familiarity with the area”).
34 No. 14‐3307
ii. Differential Treatment
Mr. Morgan next contends that differences in the defend‐
ants’ treatment of prospective jurors during jury selection es‐
tablishes that their facially neutral rationale for striking Jurors
Seven and Nine was merely a pretext for race. At Batson step
three, “[a]n opponent of a strike may rely on all relevant cir‐
cumstances to raise an inference of purposeful discrimina‐
tion.” Harris v. Hardy, 680 F.3d 942, 949 (7th Cir. 2012) (inter‐
nal quotation marks omitted); see also Miller‐El I, 537 U.S. at
339 (“Credibility can be measured by, among other factors,
[counsel’s] demeanor; by how reasonable, or how improba‐
ble, the explanations are; and by whether the proffered ra‐
tionale has some basis in accepted trial strategy.”). For exam‐
ple, a pattern of differential questioning can show discrimina‐
tory intent when it indicates an effort to elicit disqualifying
answers from minority venirepersons. Miller‐El II, 545 U.S. at
255–60. Similarly, a “comparative juror analysis” showing
that the purported reason for striking African‐American pro‐
spective jurors was not equally applied to non‐African‐Amer‐
icans can constitute evidence of pretext. Harris, 680 F.3d at
953. Here, Mr. Morgan offers a litany of discrete comparisons
that he claims demonstrate the defendants’ underlying racial
50
motive during jury selection. Upon review of the record,
50 We note that several of Mr. Morgan’s specific arguments concerning
differential questioning were not included in his motion for a new trial
before the district court and have been raised for the first time on appeal.
The defendants, however, do not argue waiver; they address each of
Mr. Morgan’s contentions on the merits. Accordingly, the defendants
have waived their waiver arguments, and we will address Mr. Morgan’s
No. 14‐3307 35
however, we do not believe these examples are indicative of
purposeful discrimination.
Mr. Morgan first asserts that the defendants “target[ed]”
African‐American venirepersons for questioning during voir
51
dire. As evidence, Mr. Morgan relies on questions asked
only to Jurors Six and Nineteen, the two African‐American
prospective jurors who were eventually seated on the jury. To
Juror Six, counsel for the defendants asked several questions
regarding her level of education. To Juror Nineteen, counsel
asked whether her children were in school or employed;
when Juror Nineteen responded that her children were all of
adult age, counsel then pursued a line of questioning concern‐
ing their employment and education.
We do not believe that these questions, when considered
in context, betray a discriminatory motive on the part of the
defendants. Counsel’s questions to Juror Six regarding her ed‐
ucation were posed in response to the prospective juror’s
statement that she worked with “medical information” as a
52
data entry clerk. Defense counsel emphasized medical train‐
ing and experience throughout voir dire, even peremptorily
striking a physical therapist; and Mr. Morgan’s medical rec‐
ords were in fact introduced at trial and discussed extensively
during closing arguments. As to Juror Nineteen, although it
is true that defense counsel did not question other venireper‐
new arguments on the merits. See Riemer v. Illinois Dep’t of Transp., 148 F.3d
800, 804 n.4 (7th Cir. 1998).
51 Appellant’s Br. 13.
52 R.115‐1 at 36–37.
36 No. 14‐3307
sons to this degree of depth about their children, Juror Nine‐
teen was the only prospective juror who made clear during
voir dire that her children were of adult age. Without any‐
thing more, we decline to attribute invidious intent to the de‐
fendants based solely on this line of questioning. Finally, we
note that despite this additional probing, both Jurors Six and
Nineteen were ultimately seated on the jury. See United States
v. Cruse, 805 F.3d 795, 808 (7th Cir. 2015) (“[T]he fact that two
black jurors remained on the jury … is a valid (if not disposi‐
tive) factor.”).
Mr. Morgan also invites our attention to the defendants’
questioning of Jurors Nine and Seven regarding their famili‐
arity with the location of the arrest, while Juror Twelve, a
53
non‐African‐American individual also from Chicago, was
not similarly questioned. See Miller‐El II, 545 U.S. at 241 (“If a
[party]’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 discrim‐
ination to be considered at Batson’s third step.”). Again, how‐
ever, we find this difference unremarkable when examined in
context. Juror Twelve had revealed that his cousin formerly
served as Corporation Counsel for the City of Chicago. Both
parties’ questioning of Juror Twelve focused on this fact.
Given the Corporation Counsel’s involvement in this case, we
see no reason to infer pretext from the defendants’ failure to
pursue other lines of questioning. See Brown, 809 F.3d at 375
53 The racial composition of the venire was not stated on the record in the
district court, but the parties appear to agree that Juror Twelve was not
African‐American.
No. 14‐3307 37
(indicating “skeptic[ism] as to whether the failure to ask a fol‐
low‐up question … suggests pretext” where the circum‐
stances of jury selection implied “that the government did not
want to interrupt the flow of the proceeding, not that it was
trying to deceive the court”).
Finally, Mr. Morgan contrasts the defendants’ peremptory
strike of Juror Seven, a security guard who “should have been
an ideal juror for defendants,” with their “significant effort to
rehabilitate” Juror Five,54 a white female who stated during
voir dire that she was friends with a police officer who had
55
told her stories about “people in Chicago of color.” The rec‐
ord will not support this argument. As we discussed previ‐
ously, the defendants provided a race‐neutral explanation for
striking Juror Seven—her familiarity with the 7700 block of
South Greenwood Avenue. With regard to Juror Five, after
Mr. Morgan challenged her for cause, the district court asked
defense counsel for a response, to which counsel replied,
“Judge, I think she indicated that despite what, she, you
know, has learned through her friend, she could be fair and
56
impartial to both sides in this particular case.” This is hardly
an “adamant defense” or a “significant effort to rehabili‐
57
tate.”
54 Appellant’s Br. 17–19.
55 R.115‐1 at 36.
56 Id. at 48.
57 Appellant’s Br. 17, 19.
38 No. 14‐3307
We are satisfied that nothing in the voir dire record sug‐
gests that the defendants’ facially race‐neutral reason for
striking Jurors Seven and Nine was a pretext for race.
B. Trial Fairness
In addition to his Batson claim, Mr. Morgan also moved for
a new trial on the basis of what he believed to be seven dis‐
tinct errors committed by the district court. Mr. Morgan now
58
raises for our review only five of these issues. We review the
district court’s denial of Mr. Morgan’s motion for a new trial
for abuse of discretion. Christmas v. City of Chicago, 682 F.3d
632, 639 (7th Cir. 2012). We will reverse only if Mr. Morgan
can establish that the errors he alleges rendered his trial un‐
fair. See id.
1. Pretrial Matters
Mr. Morgan first contends that he was denied a fair trial
because, after the parties filed a joint pretrial order along with
several dozen motions in limine, the district court failed either
58 The district court found that Mr. Morgan had waived four of the seven
alleged trial errors by failing to provide supporting authority and there‐
fore declined to address them. “Ordinarily, arguments not made in the
district court are waived on appeal.” Riemer, 148 F.3d at 804 n.4. However,
the defendants again have not argued that Mr. Morgan waived these is‐
sues by failing to develop them in the district court; rather, the defendants
address each of the five errors set forth in Mr. Morgan’s opening brief. We
therefore address these issues on their merits. See id.; supra note 50.
No. 14‐3307 39
to hold a pretrial conference or to rule on the pending mo‐
tions; the court instead chose to rule on the motions “during
59
the course of the trial … as they are made.” Mr. Morgan ar‐
gues that, in doing so, the court “created the expectation in
the parties that its subsequent failure to address resulted in
60
prejudice.”
There is no requirement that a district court hold a pretrial
conference, see Fed. R. Civ. P. 16(a), and courts have “broad
powers to determine the proper method of preparing a case
for trial,” Mizwicki v. Helwig, 196 F.3d 828, 833 (7th Cir. 1999)
(noting that a “court’s discretionary order should not be dis‐
turbed on review unless it is clear that no reasonable person
would rule as the district court judge did”). We see no basis
in the record for questioning the court’s decision to forego a
pretrial conference. With regard to the court’s deferral of its
motions in limine rulings until trial, we cannot accept
Mr. Morgan’s argument that this decision created an atmos‐
61
phere of “trial by surprise.” Indeed, a district court has con‐
tinuing discretion throughout the proceedings to alter earlier
rulings even when it rules on motions in limine before trial.
See Perry v. City of Chicago, 733 F.3d 248, 252 (7th Cir. 2013).
The district court’s resolution of these pretrial issues fits com‐
fortably within its broad discretion on such matters and did
not render Mr. Morgan’s trial unfair.
59 R.115‐1 at 3–4.
60 Appellant’s Br. 27.
61 Id. at 28.
40 No. 14‐3307
2. Evidentiary Rulings
Mr. Morgan asks us to review two of the district court’s
evidentiary rulings. These rulings are entitled to “special def‐
erence,” and we will reverse only for an abuse of discretion.
United States v. Faruki, 803 F.3d 847, 854 (7th Cir. 2015) (quot‐
ing Young v. James Green Mgmt., Inc., 327 F.3d 616, 621 (7th Cir.
2003)).
a.
Mr. Morgan first asserts that the district court abused its
discretion in allowing testimony regarding “the criminal
character of the neighborhood” in which Mr. Morgan was ar‐
62
rested. During trial, defense counsel sought to elicit testi‐
mony from one of the defendant officers, Sgt. Schulz, about
his familiarity with the location of Mr. Morgan’s arrest and
63
the “sorts of experiences [the officer had] had in that block.”
Mr. Morgan’s counsel objected, and the district court over‐
ruled, stating that “[w]hat the officers reasonably believed
64
under the circumstances is relevant.” At a sidebar, Mr. Mor‐
gan’s counsel argued that such testimony was irrelevant, prej‐
udicial, and would be used by the jury to draw an impermis‐
sible propensity inference. The court again overruled the ob‐
jection and allowed Sgt. Schulz to testify as follows:
Q. Sergeant, I think when we took that break I
was asking you what your general knowledge
62 Id. at 25.
63 R.115‐1 at 382.
64 Id.
No. 14‐3307 41
or experience is relating to 7700 South Green‐
wood. So if you could please just tell the ladies
and gentlemen of the jury?
A. In my ten‐plus years in the 6th District as a
sergeant of police, my experiences with the
block, numerous … narcotics calls, numerous
men with a gun or person with a gun calls, foot
chases, search warrants. Things of that nature.
Q. So it’s fair to say that your previous experi‐
ences were relatively similar to the events that
occurred on May 2nd, 2011, is that correct?
[Mr. Morgan’s counsel]: Objection.
THE COURT: Overruled.
BY THE WITNESS:
A. Yes, sir.[65]
Because his brief does not cite specific rules of evidence, it
is not clear whether Mr. Morgan believes that the district
court should have excluded Sgt. Schulz’s testimony under
Federal Rule of Evidence 403, 404, or both. We need not define
the precise contours of Mr. Morgan’s argument, however, be‐
cause we conclude that the officer’s testimony was admissible
66
under both Rules 403 and 404.
65 Id. at 384.
66 Cf. United States v. Faruki, 803 F.3d 847, 855 (7th Cir. 2015) (noting appel‐
lant’s argument that evidence “was unduly prejudicial because [it] impli‐
cate[d] propensity evidence concerns” but limiting its analysis to Rule 403
framework because appellant “d[id] not make an explicit Rule 404 argu‐
ment”).
42 No. 14‐3307
Under Rule 403, a “court may exclude relevant evidence if
its probative value is substantially outweighed by a danger
of … unfair prejudice.” Fed. R. Evid. 403. Here, Sgt. Schulz’s
testimony about his own decade of experience policing the
block in which Mr. Morgan was arrested had clear probative
value in understanding the officer’s evaluation of the specific
facts available to him at the time of the encounter with
Mr. Morgan. See, e.g., United States v. Zambrana, 428 F.3d 670,
675 (7th Cir. 2005) (“Police officers are entitled to make assess‐
ments of situations ‘in light [of their] specialized training and
familiarity with customs of the area’s inhabitants.’” (altera‐
tion in original) (quoting United States v. Arvizu, 534 U.S. 266,
276 (2002))); see also United States v. Flood, 965 F.2d 505, 510–11
(7th Cir. 1992) (“In establishing that probable cause existed for
an arrest or a search, law‐enforcement officers commonly tes‐
tify that their experience indicates a certain behavior pattern
or a particular combination of circumstances is indicative of—
as opposed to proof of—criminal activity.”).
The question before us then is whether the court’s admis‐
sion of Sgt. Schulz’s testimony unfairly prejudiced Mr. Mor‐
gan. “Evidence is unduly prejudicial if it creates a genuine
risk that the emotions of the jury will be excited to irrational
behavior, and the risk is disproportionate to the probative
value of the offered evidence.” United States v. Loughry, 660
F.3d 965, 974 (7th Cir. 2011). The district court did not abuse
its discretion in determining that Sgt. Schulz’s testimony
would not have such an effect here; there was nothing “inher‐
ently emotional or incendiary” about the officer’s summation
of his own experiences policing the block. United States v.
Strong, 485 F.3d 985, 991 (7th Cir. 2007). By contrast, this in‐
formation was central to evaluating the lawfulness of the stop
under the Fourth Amendment. See Venson v. Altamirano, 749
No. 14‐3307 43
F.3d 641, 656 (7th Cir. 2014) (holding officer’s testimony re‐
garding experience in neighborhood not prejudicial “to the
extent it addressed how [the arresting officers] would have
perceived Venson’s behavior at the time of his arrest”).
Similarly, Sgt. Schulz’s testimony certainly did not consti‐
tute impermissible character evidence. Rule 404(a) “estab‐
lishes the general proposition that evidence of a person’s
character or a trait of a character is not admissible for the pur‐
pose of proving action in conformity therewith on a particular
occasion.” United States v. Smith, 230 F.3d 300, 307 (7th Cir.
2000). This prohibition, however, applies only to “evi‐
dence … offered ‘to prove that on a particular occasion the
person acted in accordance with the character or trait.’”
United States v. Volpendesto, 746 F.3d 273, 293 (7th Cir. 2014)
(quoting Fed. R. Evid. 404(a)(1)). Here, Sgt. Schulz’s testi‐
mony was not offered to establish that Mr. Morgan was acting
in conformity with a personal character trait. Instead, it was
introduced so that the jurors would understand the legally
relevant experience through which the officer would have fil‐
tered the facts available at the time he encountered Mr. Mor‐
gan. See id. (holding that testimony was not propensity evi‐
dence because it was introduced to show “subjective state of
mind”).
b.
Mr. Morgan also submits that the district court permitted
the defendants to “intentionally violate[] their own motion in
limine … regarding probable cause,” thereby depriving him
44 No. 14‐3307
67
of a fair trial. Prior to trial, the defendants filed a motion in
limine requesting that the district court bar evidence that the
state court had found “no probable cause” to prosecute
Mr. Morgan on the charge of possession of a controlled sub‐
68
stance. During trial, Mr. Morgan called the watch com‐
mander on the night of the arrest, CPD Cpt. Ruth Wedster, to
testify. On cross‐examination, Cpt. Wedster referenced “prob‐
able cause,” and Mr. Morgan’s counsel immediately objected
on the ground that “probable cause” was the subject of de‐
69
fendants’ pending motion in limine. Mr. Morgan’s counsel
moved to strike Cpt. Wedster’s statement, and the district
court sustained the motion and instructed the jury to “disre‐
70
gard the last statement.” The court exercised sound judg‐
ment in its response to Mr. Morgan’s objection. Nothing more
was required. See United States v. Bonner, 302 F.3d 776, 782 (7th
Cir. 2002) (“There is a very strong presumption that a jury has
understood and followed the trial court’s limiting instruction,
erasing the improper influence that might have been caused
by the stricken statement.”).
3. Jury Instruction Matters
Mr. Morgan next urges that the district court committed
multiple errors related to instructing the jury. First, he argues
67 Appellant’s Br. 29–30.
68 R.57 at 10.
69 R.115‐1 at 478–79.
70 Id.
No. 14‐3307 45
that the court abused its discretion when it allowed the de‐
fendants to offer new jury instructions after the close of evi‐
dence. At the conclusion of trial, the court directed the parties
to confer before the next court date and then provide a set of
agreed instructions and jury forms. When the court recon‐
vened, the parties had reached agreement on roughly thirty
instructions but had remaining disputes on another fifteen,
and the court heard arguments on the disputed instructions.
During argument, Mr. Morgan objected to one of the defend‐
ants’ proposed instructions on the ground that it “was just
proposed last night,” to which the court responded,
“you’ve … had months to work on this,” and overruled the
71
objection.
Mr. Morgan argues only that the defendants’ proposed in‐
struction was untimely under Federal Rule of Civil Procedure
51(a)(1), which states: “At the close of the evidence or at any
earlier reasonable time that the court orders, a party may file
and furnish to every other party written requests for the jury
instructions it wants the court to give.” Because the proposed
instruction was submitted after the close of evidence, Mr. Mor‐
gan contends that the defendants were limited to “fil[ing] re‐
quests for instructions on issues that could not reasonably
have been anticipated by an earlier time that the court set for
requests.” Fed. R. Civ. P. 51(a)(2)(A). Mr. Morgan’s timeliness
argument, however, ignores Rule 51(a)(2)(B), which allows a
party, “with the court’s permission,” to submit “untimely re‐
quests for instructions on any issue.” Id. 51(a)(2)(B). In any
event, Mr. Morgan does not explain how the court’s ruling
caused him prejudice. See Johnson v. General Bd. of Pension &
71 Id. at 551–52.
46 No. 14‐3307
Health Benefits of United Methodist Church, 733 F.3d 722, 732
(7th Cir. 2013) (concluding that Rule 51(b) error was harmless
where appellant “ha[d] not argued, let alone shown, that
the … error caused her independent prejudice”).
Mr. Morgan next asserts that the district court wrongly de‐
clined to give the parties’ agreed upon response to a question
posed by the jury. During the second day of jury delibera‐
tions, the jury sent a note asking whether, in the context of an
investigatory stop, it is necessary for an officer to reasonably
suspect an individual of “being connected with a crime or
misdemeanor … having committed a crime or misde‐
meanor … having information regarding a crime or misde‐
meanor [or] … intending to commit a crime or misde‐
72
meanor[.]” The parties submitted to the court an
agreed‐upon answer: “With respect to reasonable suspicion,
you must find that the defendant … had reasonable suspicion
that the plaintiff had committed or was about to commit a
73
crime.” The court, however, believed that the response was
not an accurate expression of the law and declined to give it.
The court instead gave the following instruction:
An investigative stop is a brief detention which
gives police officers a chance to verify or dispel
well‐founded suspicions that a person has been,
is, or is about to be engaged in criminal activity.
Permissible encounters between police officers
and citizens are not limited to situations involv‐
ing possible criminal activity, but also include
72 Id. at 666.
73 Id. at 667.
No. 14‐3307 47
situations in which persons may need help or
are in danger of harming themselves or others.
… In determining whether particular cir‐
cumstances rise to the level of a reasonable sus‐
picion, courts must look—must take into con‐
sideration the modes or patterns of operations
of certain kinds of law‐breakers which allow
trained officers to draw inferences and make de‐
ductions that might well elude an untrained
person.[74]
Mr. Morgan’s counsel objected that the jury had already been
instructed on reasonable suspicion and that the court’s in‐
struction “elaborates on things that aren’t really pertinent to
the question that the jury asked” and “goes far beyond what
75
they have already been instructed on.” The court overruled
the objection and gave its own response. In his brief, Mr. Mor‐
gan submits that the court’s supplemental instruction “was
overly broad, biased, and unnecessary” and that “[t]his was a
76
close case.” We review the court’s response to the jury’s
question for abuse of discretion. United States v. Danford, 435
F.3d 682, 687 (7th Cir. 2005). In so doing, we ask: “(1) whether
the instructions as a whole fairly and adequately treat the is‐
sues; (2) whether the supplemental instruction is a correct
statement of the law; and (3) whether the district court an‐
swered the jury’s questions specifically.” Id. at 688.
74 Id. at 668.
75 Id. at 670.
76 Appellant’s Br. 33.
48 No. 14‐3307
The district court’s supplemental instruction accurately
stated the law and addressed directly the jury’s questions.
When read in conjunction with the original jury instruction
77
regarding investigatory stops and reasonable suspicion, the
court’s response fairly and adequately treated the issue. We
therefore conclude that the court did not abuse its discretion
in giving its supplemental instruction in lieu of the parties’
agreed upon response.
4. Cumulative Error
Finally, Mr. Morgan urges that the cumulative effect of
the errors that he alleges deprived him of a fair trial. Because
we believe that the district court exercised sound judgment
in its rulings on all of these matters, we similarly conclude
that Mr. Morgan’s cumulative error argument is without
77 The original instruction stated:
An investigatory stop is permissible under the Fourth
Amendment if supported by reasonable suspicion. Police
officers are justified in conducting a brief investigatory
stop if an officer is able to point to specific and articulable
facts which, taken together with rational inferences from
those facts, reasonably warrant the stop.
Reasonable suspicion is a common sense, nontech‐
nical concept that deals with the factual and practical con‐
siderations of everyday life on which reasonable men, not
legal technicians, act. It involves probabilities and does
not always involve hard certainties, and therefore the to‐
tality of the circumstances must be taken into account. A
reasonable, articulable suspicion requires more than a
hunch but less than probable cause.
R.115‐1 at 644–45.
No. 14‐3307 49
merit. See United States v. LeShore, 543 F.3d 935, 942 (7th Cir.
2008).
Conclusion
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED