United States of America v. Jesse A. Stoldorf

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 9, 2006
Decided August 15, 2006
Before
Hon. RICHARD A. POSNER , Circuit Judge
Hon. J OHN L. COFFEY , Circuit Judge
Hon. FRANK H. EASTERBROOK , Circuit Judge
No. 05-3020
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
J ESSE A. S TOLDORF,
Defendant-Appellant.
Appeal from the United
States District Court for the
Central District of Illinois.
No. 04-20048-001
Michael P. McCuskey, Chief
Judge.
Order
Jesse Stoldorf has been sentenced to 264 months’ imprisonment following his
conviction for possessing a firearm despite a felony conviction. The sentence was
enhanced under 18 U.S.C. §924(e) because Stoldorf is an armed career criminal. His
only argument on appeal is that the prosecutor violated the Constitution by exercis-
ing a peremptory challenge on the basis of race. See Batson v. Kentucky, 476 U.S. 79
(1986).
The venire had only one black member, Robert Sallee. The prosecutor exercised
a challenge against Sallee. When defense counsel protested, the prosecutor gave two
reasons—that Sallee has two nephews in prison and hesitated when the judge
asked whether he would afford law-enforcement witnesses the same credibility as
other witnesses—that led the prosecutor to question whether Sallee would be a fa-
vorable juror. These explanations are race-neutral, so the only question is whether
the prosecutor was honest. The district judge concluded that the explanation was
indeed candid. That decision may be upset on appeal only if clearly erroneous, see

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No. 05-3020 Page 2
Hernandez v. New York, 500 U.S. 352, 369 (1991), and only the most unusual show-
ing leads for an appellate court to set aside a trial judge’s ruling on credibility. See
Anderson v. Bessemer City, 470 U.S. 564 (1985).
Stoldorf contends that the prosecutor’s explanation cannot be the right one, be-
cause some white jurors with imprisoned relatives were not challenged. That con-
tention may have persuaded a district judge; it does not establish that an adverse
ruling by this judge is clearly erroneous. First, the other jurors did not hesitate at a
critical juncture. (What inferences to draw from such a hesitation and other aspects
of Sallee’s demeanor is a topic best resolved by someone who saw the events, as the
district judge did.) Second, the prosecutor did challenge other venire members with
imprisoned relatives—five in all (including Sallee), and four of the five are white.
That still other members of the venire with imprisoned relatives were seated on the
jury shows that the number of peremptory challenges is capped at six, not that the
prosecutor employed his challenges in a discriminatory fashion.
AFFIRMED

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