United States of America v. Shawn Jackson

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0371P (6th Cir.)
File Name: 03a0371p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SHAWN JACKSON,
Defendant-Appellant.
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No. 02-3583
Appeal from the United States District Court
for the Southern District of Ohio at Dayton.
No. 01-00070—Walter H. Rice, Chief District Judge.
Argued: September 11, 2003
Decided and Filed: October 20, 2003
Before: NELSON, GIBBONS, and SUTTON, Circuit
Judges.
_________________
COUNSEL
ARGUED: Richard W. Smith-Monahan, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Cincinnati, Ohio, for
Appellant. Mona Guerrier, UNITED STATES ATTORNEY,
Dayton, Ohio, for Appellee. ON BRIEF: Richard W. Smith-
Monahan, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Cincinnati, Ohio, for Appellant. Mona
2 United States v. Jackson No. 02-3583
Guerrier, UNITED STATES ATTORNEY, Dayton, Ohio, for
Appellee.
_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. Defendant-
appellant Shawn Jackson was convicted of one count of post
office robbery in violation of 18 U.S.C. § 2115. During jury
selection, the government exercised a peremptory challenge
to exclude Anthony Turner, who at the time was the only
African-American on the jury panel. Jackson did not object
to the government’s decision to strike Turner until the jury
and two alternates were selected. The district court asked the
government for an explanation for its decision to strike
Turner, and Jackson did not argue that the proffered
explanation was a pretext for discrimination. The district
court found that the government offered a race-neutral
explanation and overruled Jackson’s objection. Jackson now
appeals this ruling, as well as the district court’s refusal to
give the jury instructions he requested regarding his theory of
the defense and the reliability of certain identification
testimony offered at his trial. For the following reasons, we
affirm the judgment of the district court.
I.
On August 28, 2001, Jackson was indicted by a federal
grand jury in the Southern District of Ohio for one count of
post office robbery in violation of 18 U.S.C. § 2115. The
indictment alleged that on May 24, 2001, Jackson robbed a
United States post office in Dayton, Ohio, of approximately
$1,333.00. Jackson’s trial began on November 5, 2001.
During voir dire, the district court asked the potential jurors
to indicate if they had ever been government employees, and
if so, whether their government service would affect their
ability to serve as a juror. Anthony Turner, juror number 41,

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No. 02-3583 United States v. Jackson 3
responded by saying, “I served in the United States Air Force
for twenty years. And that would not affect my participation
in the court.” The government did not ask Turner any follow-
up questions to his response.
Nonetheless, the government later exercised a peremptory
challenge to exclude Turner. At the time, Turner was the only
African-American on the jury panel. Jackson did not raise an
objection to the government’s peremptory challenge until
after the jury and two alternates were selected. Counsel for
Jackson did not object earlier because he believed that Turner
had no chance of being on the panel, but once the selection
process was over it became clear that Turner would have been
an alternate if the government had not struck him from the
panel. In accordance with the Supreme Court’s decision in
Batson v. Kentucky, 476 U.S. 79 (1986), the court asked the
government to give its reasons for the challenge. In response,
Assistant United States Attorney Richard Chema stated that:
The gentleman was unresponsive . . . to a question of the
Court. The Court asked . . . if anyone had been involved
in the government and [would that] in some way affect
your ability to serve on the jury. He stood up and said,
he was in the Air Force for 21 years and retired from the
Air Force and that wouldn’t affect him.
Counsel for the government, both Miss Guerrier and
myself believe that this gentleman wanted to get up and
give a speech for one reason or another. The government
didn’t like the kind of attitude that we believe he was
putting forth and his demeanor. That’s the reason the
strike was made.
Jackson did not object to the government’s proffered
explanation, nor did he argue that it was a pretext for
discriminatory animus. The district court concluded that the
government had offered a legitimate, non-discriminatory
reason in response to Jackson’s Batson challenge, and
4 United States v. Jackson No. 02-3583
Jackson did not object to that ruling or request a more
detailed record of the judge’s rationale.
On the third day of trial, the government revisited the issue
of Jackson’s Batson objection in a conference with the district
court judge. The government’s lead counsel, Mona Guerrier,
volunteered that she was the one who initially felt
uncomfortable with Turner’s demeanor and she also indicated
for the record that she is an African-American. The court
indicated that her explanation could not be considered
because it was being offered three days into the trial. Once
again, at the conclusion of the government’s comments,
Jackson made no additional objections or arguments with
respect to the Batson issue.
The evidence presented at trial established that on the day
of the robbery, Jackson went to the Dayton post office with
his girlfriend’s brother, Tim Anderson. While in the post
office, Jackson observed a transaction involving
approximately $1,900.00. As he was leaving, Jackson told
Anderson that he had “cased [his] spot.” According to
Anderson, at the time Jackson was wearing a dark-colored
windbreaker, dark pants, white tennis shoes, and a baseball
cap with a New York logo on it. After visiting the post
office, Jackson borrowed a red and white bicycle from his
friend Tony Harris.
Barbara Barnett, a postal clerk, testified that on May 24,
2001, a black male between the ages of eighteen and twenty,
wearing a New York baseball hat and a dark jacket
approached the counter and gave her a note stating, “Hand me
your cash. I have a gun.” She then “looked at him in the eyes
and said, ‘Are you sure you really want to do this?’” The
robber became angry and leaned toward her and said “give me
the damn cash.” During this exchange, Barnett noticed that
the robber had a gap between his front teeth. Barnett then
gave him the cash from her drawer.

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No. 02-3583 United States v. Jackson 5
Shortly after the robbery, Barnett viewed a photo line-up
and identified Jackson as the robber. Barnett indicated that
she was sixty to seventy percent sure of her identification. At
trial, Barnett again identified Jackson as the robber. During
her testimony, Jackson was asked to smile and expose his
teeth to Barnett and the jury, and Barnett confirmed that
Jackson had a gap between his front teeth.
The government produced additional eyewitness testimony
that was incriminating to Jackson. Brian Butterbaugh, the
other postal clerk on duty on the day of the robbery, testified
that he observed a gap between the robber’s two front teeth
when the robber approached his window at the post office.
Catherine Green, a customer who was at the post office on the
day of the robbery, testified that she saw a red bike by the
door of the post office when she entered. Green further
testified that she had observed a black male wearing a dark
jacket and a dark hat reposition himself at the back of the line
several times for no apparent reason. After completing her
transaction at the postal window, she observed the same man
exiting the post office, and she saw him jump on the red
bicycle and ride away very fast. She also identified Jackson
as the man she saw at the post office riding away on the bike.
Several of Jackson’s acquaintances testified that Jackson had
a gap between his front teeth. Jackson’s girlfriend testified
that he owned clothes matching the description provided by
the postal clerks and confirmed that he was wearing those
clothes on the day of the robbery. During the course of the
trial, the government presented additional circumstantial
evidence suggesting that Jackson had committed the robbery.
At the close of the trial, Jackson submitted several proposed
jury instructions. Specifically, Jackson requested the
following instruction on his theory of defense:
The defense says that Shawn Jackson was misidentified
as the robber of the post office by the witnesses who
were there that day. The defense further says that the
6 United States v. Jackson No. 02-3583
acquaintances of Shawn Jackson had motivations which
show they were being untruthful.
The district court declined this request because it found that
the instruction was unnecessary and not required by law.
Jackson also requested the following instruction regarding
some of the identification testimony that had been offered at
his trial:
You have heard the testimony of Barb Barnett and
Catherine Green, who have identified the defendant as
the person who robbed the post office. You should
carefully consider whether this identification was
accurate and reliable.
The proposed instruction also set forth factors that Jackson
wanted the jurors to consider in determining whether the
identification was accurate and reliable. The district court
again declined to give the instruction, stating: “My concern
is that I think the accuracy of the identification can be argued
under credibility. I don’t think a separate instruction is
necessary.” The court did provide a general instruction to the
jury on assessing the credibility of each witness:
Consider carefully the circumstances under which each
witness testified. Remember the witness’s response to
questions, his or her assurance or lack of it in answering,
and the entire demeanor or appearance of that witness
while on the witness stand.
Consider also any relation that a witness may bear to
either side of the case and his or her reasons for
testifying, any interest he or she may have in the outcome
of the case. Any prejudice or bias he or she may have
shown including any reason or motivation to bear
hostility or animosity toward a party and any partiality he
or she may have demonstrated.

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No. 02-3583 United States v. Jackson 7
On November 9, 2001, the jury returned a guilty verdict.
On May 15, 2002, the district court sentenced Jackson to
ninety-six months incarceration, three years supervised
release, and one hundred hours of community service. In
addition, Jackson was ordered to pay restitution to the United
States Postal Service in the amount of $613.00 and a special
assessment of $100.00. On May 21, 2002, Jackson filed this
timely appeal.
II.
A. Jackson’s Batson Objection
Jackson argues that the government violated his right to
equal protection when it used a peremptory challenge to strike
Turner, the only remaining African-American member of the
jury panel. After counsel for Jackson raised a Batson
objection to the government’s peremptory challenge, the
district court required the government to state its reasons for
excluding Turner on the record. Counsel for the government
indicated that he struck Turner from the panel because he did
not like his demeanor and “attitude.” The district court
concluded that the government had offered a legitimate, non-
discriminatory reason for the challenge and overruled
Jackson’s objection.
The Equal Protection Clause prohibits a party from using
peremptory challenges to exclude members of the venire on
account of their race. Batson v. Kentucky, 476 U.S. 71, 79
(1981); Edmonson v. Leesville Concrete Co., Inc., 500 U.S.
614, 630-31 (1991) (extending Batson to civil cases). In
order to establish an equal protection violation under Batson,
the complaining party must first make a prima facie showing
that the peremptory challenge was based on race. McCurdy
v. Montgomery County, 240 F.3d 512, 521 (6th Cir. 2001). If
the complaining party establishes a prima facie case, the
burden of persuasion then shifts to the party making the strike
to articulate a race-neutral explanation for removing the juror
in question. Id. This explanation “need not be particularly
8 United States v. Jackson No. 02-3583
1In Mahan, however, this court held that a party’s use o f a
peremptory challenge to strike the only prospective black juror was “more
than sufficient to establish a prim a facie case of intentional
discrimination.” 190 F.3d at 424-25.
persuasive, or even plausible, so long as it is neutral.” Id. at
521 (citing United States v. Harris, 192 F.3d 580, 586 (6th
Cir. 1999)). Once a race-neutral explanation is produced, the
complaining party must prove purposeful discrimination.
Batson, 476 U.S. at 98. Purposeful discrimination may be
shown by demonstrating that the proffered explanation is
merely a pretext for racial motivation. McCurdy, 240 F.3d at
521. Throughout the Batson inquiry, the ultimate burden of
persuasion always rests with the party challenging the strike.
Id.; see also United States v. Mahan, 190 F.3d 416, 424 (6th
Cir. 1999). A district court’s ruling on whether the exercise
of a peremptory challenge violates equal protection is entitled
to great deference and will not be reversed unless it is clearly
erroneous. United States v. Buchanan, 213 F.3d 302, 308-09
(6th Cir. 2000).
In the instant case, the district court asked the government
for an explanation for its decision to strike Turner without
considering whether Jackson had established a prima facie
case.1 However, once a party offers a race-neutral
explanation for a peremptory challenge and the trial court has
ruled on the ultimate question of intentional discrimination,
“the preliminary issue of whether the defendant [has] made a
prima facie showing of intentional discrimination becomes
moot.” Hernandez v. New York, 500 U.S. 352, 359 (1991);
Roberts ex rel. Johnson v. Galen of Virginia, Inc., 325 F.3d
776, 780 (6th Cir. 2003). Thus, we need not consider whether
Jackson has established a prima facie showing that the
peremptory challenge was based on race.
The second step in the Batson inquiry is to assess whether
the government articulated a race-neutral explanation for its
decision to strike Turner from the panel. A district court must

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No. 02-3583 United States v. Jackson 9
2W hen an appellant fails to make an objection in the trial court, the
objection is deem ed forfeited, and thus non-cognizable upon appellate
review, unless the assailed action of the trial court constituted plain error.
Fed. R. Crim. P. 52(b). To establish plain error, the appellant must show
(1) that an error occurred in the district court; (2) that the error was plain,
i.e., obvious or clear; (3) that the error affected an appellant’s substantial
rights; and (4) that this adverse impact seriously affected the fairness,
integrity or public reputation of the judicial proceed ings. United States
v. Ko eberlein, 161 F.3d 94 6, 949 (6th Cir. 1998).
independently assess a race-neutral explanation and explicitly
rule on its credibility, “particularly in cases when the
purported race-neutral justification is predicated on subjective
explanations like body language or demeanor.” McCurdy,
240 F.3d at 521. It is inappropriate for a district court to
perfunctorily accept a race-neutral explanation without
engaging in further investigation. Id. at 520-21. However, “it
is the defendant’s burden to rebut, to whatever extent
possible, the prosecutor’s reasons for exercising his or her
peremptory strikes on the record at the time such reasons are
proffered.” United States v. Harris, No. 00-3474, 2001 WL
873642, at *3 (6th Cir. July 26, 2001). If a defendant fails to
rebut a race-neutral explanation at the time it was made, the
district court’s ruling on the objection is reviewed for plain
error,2 United States v. Wilson, No. 99-2280, 2001 WL
549446, at *2 (6th Cir. May 14, 2001), and the movant in this
setting is in no position to register a procedural complaint that
the district court failed to give a specific reason on the record
for accepting the government’s race-neutral explanation. A
movant’s failure to argue pretext may even constitute waiver
of his initial Batson objection. Davis v. Baltimore Gas &
Elec. Co., 160 F.3d 1023, 1027 (4th Cir. 1998); United States
v. Contreras-Contreras, 83 F.3d 1103, 1105 (9th Cir. 1996);
Hopson v. Frederickson, 961 F.2d 1374, 1377 (8th Cir. 1992);
United States v. Rudas, 905 F.2d 38, 41 (2d Cir. 1990).
The district court concluded that the government had come
forward with a legitimate, non-discriminatory reason for its
peremptory challenge, and Jackson did not object to the
10 United States v. Jackson No. 02-3583
court’s ruling or attempt to rebut the government’s proffered
explanation by arguing that it was a pretext for
discrimination. On appeal, Jackson argues that the totality of
the information available to the district court at the time the
strike was made indicated that the government’s peremptory
challenge was based on a discriminatory purpose.
Specifically, Jackson now objects to the district court’s failure
to weigh the credibility of the government’s explanation on
the record. He also argues for the first time on appeal that the
proffered explanation lacked credibility because the
government failed to strike similarly-situated white jurors.
Because Jackson failed to rebut the government’s explanation
at the time it was made, we review the district court’s ruling
on his objection for plain error.
A peremptory challenge is not unconstitutional solely
because it has a racially disproportionate impact. Some proof
of racially discriminatory intent or purpose is required in
order to show a violation of the Equal Protection Clause.
Hernandez, 500 U.S. at 360 (citing Arlington Heights v.
Metro. Hous. Dev. Co., 429 U.S. 252, 264-64 (1977)). In the
Batson context, a party’s explanation for its decision to strike
is “neutral” if it is based on something other than the race of
the juror. Id. In the absence of discriminatory intent inherent
in the explanation, the reason offered is deemed race neutral.
Id.
There was no evidence of discriminatory intent inherent in
the government’s proffered explanation in this case, and
Jackson made no attempt to argue to the district court that the
explanation was a pretext for discrimination. Furthermore,
Jackson has not asserted any arguments on appeal that suggest
the district court plainly erred by overruling his objection.
Jackson contends that the government’s failure to strike
similarly-situated white jurors from the panel should have
signaled to the district court that the government had a
discriminatory purpose when it struck Turner from the panel.
In fact, all of the “similarly-situated” white jurors Jackson
points to in his brief were responding to a different question

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No. 02-3583 United States v. Jackson 11
from the one Turner was answering when he made the
statement that caused the government to object to his presence
on the panel. Turner was responding to a question about
previous government employment, while the jurors cited in
Jackson’s brief were responding to questions about their
experiences with law enforcement. Jackson did not attempt
to rebut the government’s explanation by offering additional
evidence and did not otherwise indicate a continuing
objection. The district court could have construed Jackson’s
failure to respond to the government’s explanation as an
indication that he no longer disputed the strike. See Rudas,
905 F.2d at 41. The burden was on Jackson as the party
challenging the strike to prove the existence of purposeful
discrimination, and when faced with the government’s
seemingly race-neutral explanation, Jackson made no
response. Under these circumstances, the district court did
not plainly err in overruling Jackson’s Batson objection.
B. Jackson’s Proposed Jury Instructions
Jackson’s second contention on appeal is that the district
court erred by refusing to provide the jury with instructions
on his theory of the defense and on the reliability of
identification testimony offered at his trial. A district court’s
refusal to deliver a requested jury instruction amounts to
reversible error only if the instruction (1) is a correct
statement of the law; (2) was not substantially covered by the
charge actually delivered to the jury, and (3) concerns a point
so important in the trial that the failure to give it substantially
impairs the defendant’s defense. United States v. Gibbs, 182
F.3d 408, 432 (6th Cir. 1999).
At the close of the trial, Jackson asked the district court to
instruct the jury that “[t]he defense says that Shawn Jackson
was misidentified as the robber of the post office by witnesses
who were there that day” and that “the acquaintances of
Shawn Jackson had motivations which show they were being
untruthful.” Counsel for Jackson repeatedly emphasized
these theories to the jury throughout the entire trial, beginning
12 United States v. Jackson No. 02-3583
with his opening statement that “this case is really about
mistaken identity and hidden motivations.” During cross-
examination, defense counsel questioned the government’s
witnesses at length regarding how much time each had spent
actually looking at the defendant, the distance at which each
of them had viewed the defendant, and any distractions or
memory lapses that might have impacted their observations.
When defense counsel gave his closing argument, he spent
considerable time emphasizing these same points, as well as
the defense’s theory that the government’s witnesses had
mistaken Jackson for Tony Harris on the day of the robbery.
The district court specifically instructed the jury to consider
“any bias or prejudice” a witness may have had when
testifying, including “any reason or motivation to bear
hostility or animosity toward any party.” In short, the failure
to give this instruction did not substantially impair Jackson’s
defense because the jury was already well aware of his theory
of the case. See United States v. Covington, 2001 WL
302067, at *2 (6th Cir. March 21, 2001); United States v.
Laury, 49 F.3d 145, 152 (5th Cir. 1995).
Jackson also requested more detailed instructions on
identification testimony, including a set of factors for the jury
to use in determining whether an identification is accurate and
reliable. The district court overruled Jackson’s request and
gave the jury a general credibility instruction to consider “the
circumstances under which each witness testified,” as well as
the “entire demeanor or appearance” of each witness.
Identification instructions are within the discretion of the trial
court; they need only be given if there is a danger of
misidentification due to a lack of corroborating evidence.
United States v. Boyd, 620 F.2d 129, 131-32 (6th Cir. 1980).
Jackson’s identification was not uncorroborated. Two
eyewitnesses identified him as the robber, and evidence was
presented indicating that on the day of the robbery he was
wearing the same clothes as those worn by the culprit and that
he had possession of a bicycle matching the description of the
one used by the robber when he left the post office. Once
again, defense counsel discussed at length throughout the trial

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No. 02-3583 United States v. Jackson 13
the accuracy and reliability of the identification testimony
offered by the government, so it cannot be said that the
district court’s failure to give Jackson’s proposed instruction
substantially impaired his defense.
III.
For the foregoing reasons, we affirm the judgment of the
district court.

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