United States of America v. Jalen Howard

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2660
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JALEN HOWARD,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:19-cr-00255-TWP-MJD — Tanya Walton Pratt, Chief Judge.
____________________
A RGUED O CTOBER 26, 2022 — DECIDED M AY 10, 2023
____________________
Before R OVNER , HAMILTON , and BRENNAN , Circuit Judges.
R OVNER , Circuit Judge. A jury convicted Jalen Howard of
being a felon in possession of a weapon, but he asserts that
the jury trial was tainted by errors that occurred during jury
selection when the district court injected the prosecutor’s race
into the Batson inquiry and otherwise improperly evaluated
the peremptory strike against a Black juror. We find no error,
however, and therefore affirm.

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2 No. 21-2660
I.
“Purposeful racial discrimination in selection of the venire
violates a defendant’s right to equal protection because it de-
nies him the protection that a trial by jury is intended to se-
cure.” Batson v. Kentucky, 476 U.S. 79, 87 (1986), modified by
Powers v. Ohio, 499 U.S. 400 (1991). Race-based exclusions in
jury selection harm not only the defendant, but also “public
confidence in the fairness of our system of justice.” Id. In Bat-
son, the Supreme Court set forth a system for challenging per-
emptory challenges that sought to balance the traditional no-
tion of allowing prosecutors to strike jurors for any reason,
with the prohibition against striking jurors on the prohibited
basis of race. Id. at 89; United States v. Harris, 197 F.3d 870, 873
(7th Cir. 1999).
Howard’s Batson challenge in this case centers on the per-
emptory strike of Juror 24, a Black, female juror. During ve-
nire, the government struck the only three Black jurors on the
39-person venire panel. Howard does not challenge the strike
of the first two jurors, but their removal from the jury pool left
Juror 24 as the last remaining Black juror.1 Howard chal-
lenged the strikes as discriminatory, and the district court
moved through the three-step Batson analysis for evaluating
the legitimacy of peremptory strikes challenged on the basis
of racial discrimination. We describe that process in further
detail below.
Juror 24 piqued the prosecutor’s attention with her re-
sponse to the district court’s voir dire questioning about
1 During jury selection, Howard initially challenged the strikes of all
three Black jurors, but on appeal abandoned the challenge to Jurors 2 and
9.

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No. 21-2660 3
internet usage. During the judge’s explanation of a juror’s du-
ties and obligations, she admonished the jurors that they
could not use the internet for any purpose related to or sur-
rounding the case. Just before this admonishment she asked
the jurors to “[r]aise your number if you don’t use the inter-
net.” R. 152 at 17. Jurors 9, 13, and 24 each raised their num-
bers. Jurors 9 and 24 were two of the three Black jurors on the
panel. Juror 24 told the court “I really don’t use the internet. I
usually leave that to my husband and the grandkids.” R. 152
at 58. The prosecutor struck each of these three jurors because,
he explained, “I do not believe people when they say they
don’t use the Internet.” R. 127 at 30.
In response to the defendant’s subsequent Batson chal-
lenge, the district court walked through the three-steps of the
Batson inquiry. After articulating the third step—that the de-
fendant meet its burden of demonstrating purposeful dis-
crimination by the government—the district court summa-
rized Howard’s counsel’s argument as follows: “Your sole
justification and your persuasiveness is that the government
attorney, who does happen to be African-American, has
struck every single African-American on the panel.” R. 127 at
26. In this appeal, Howard points to this comment and argues
that the district court erred by injecting the prosecutor’s race
into the Batson inquiry. He also argues that the court erred by
improperly evaluating the peremptory strike and failing to
make required demeanor findings. We evaluate each of these
in turn.
II.
“When the government’s choice of jurors is tainted with
racial bias, that overt wrong casts doubt over the obligation of
the parties, the jury, and indeed the court to adhere to the law

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4 No. 21-2660
throughout the trial.” Miller-El v. Dretke, 545 U.S. 231, 238
(2005) (hereinafter “Miller-El II”) (cleaned up). Once a defend-
ant challenges a strike, the trial court must use Batson’s three-
step process to evaluate whether the prosecutor has violated
the Equal Protection Clause by removing potential jurors on
the basis of race. Batson, 476 U.S. at 89, 93–98. First, the de-
fendant must set forth a prima facie showing of purposeful
race-based discrimination. Id. at 96. Once the defendant has
successfully established a prima facie case that the strikes
were race-based, the burden then shifts to the government to
articulate a race-neutral justification for the strike. Id. at 97.
Finally, in the third step (and the only one at issue in this
case), the trial court must determine whether the defendant
has carried the burden of showing purposeful discrimina-
tion—that is, that the government’s race-neutral justification
is not credible. Id. at 98; see also Foster v. Chatman, 578 U.S. 488,
499 (2016); Miller-El v. Cockrell, 537 U.S. 322, 328–29 (2003)
(hereinafter “Miller-El I”).
The third step of the Batson inquiry ordinarily “turns on
factual determinations and, ‘in the absence of exceptional cir-
cumstances,’ we defer to [trial] court factual findings unless
we conclude that they are clearly erroneous.” Foster, 578 U.S.
at 500 (quoting Snyder v. Louisiana, 552 U.S. 472, 477 (2008)).
The trial court has both the jurors and lawyers before it, and
therefore is best positioned to make the credibility determina-
tions necessary in evaluating a Batson challenge. Snyder, 552
U.S. at 477; United States v. Elizondo, 21 F.4th 453, 466 (7th Cir.
2021). And because of the trial court’s expertise in fact finding,
particularly regarding evaluation of demeanor, “the trial
court’s decision on the ultimate question of discriminatory in-
tent represents a finding of fact of the sort accorded great def-
erence on appeal and will not be overturned unless clearly

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No. 21-2660 5
erroneous.” Miller-El I, 537 U.S. at 340 (internal citation omit-
ted).
Although we give factual determinations deference, any
claims of legal error in the application of Batson are reviewed
de novo. United States v. Brown, 809 F.3d 371, 373 (7th Cir.
2016). In this case, the defendant does indeed allege a legal
error—that the district court considered the prosecutor’s race
in evaluating the government’s exercise of a peremptory
strike of a Black juror. Howard centers his claim on the court’s
statement, while discussing the persuasiveness of his Batson
challenge, that the prosecutor “does happen to be African-
American.” R. 127 at 26. Howard is correct that it is indeed
legal error “for a judge to assume that a prosecutor of the
same race as a juror would not engage in discrimination
against that juror simply because of their shared race.” United
States v. Rutledge, 648 F.3d 555, 562 (7th Cir. 2011).2 As we
2 In addition, Howard points out that the district court also erred by
stating, at step one of the Batson inquiry, that “defense counsel has met his
prima facie step one because his client is African-American.” R. 127 at 34.
Defense counsel immediately pointed out the error reminding the court
that in “Batson [and] in the cases that follow, it’s not about the defendant’s
race, but it’s about the juror’s race. … because it is the jurors who are es-
sentially potentially being disenfranchised.” R. 127 at 36. See Powers, 499
U.S. at 410, 416. The court agreed and immediately corrected the error.
Howard mentions this in a footnote as “further indication that the court
weighed irrelevant and improper factors in its Batson analysis.” Howard
Brief at 11, n.2. This is not a stand-alone claim for error (and could not be,
as it was raised only in a footnote and arguments raised in footnotes are
not preserved for review, see Moriarty ex rel. Local Union No. 727 v. Svec,
429 F.3d 710, 722 (7th Cir. 2005)). We consider it only for the limited pur-
pose for which Howard raised it, which we assume was to add context to
his primary claim that the court improperly considered the prosecutor’s
race.

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6 No. 21-2660
noted in Rutledge, Supreme Court case law and our own have
long “rejected any ‘conclusive presumption’ that a member of
a group will not discriminate against other members of a
group.” Id. at 561 (quoting Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 78 (1998)). Although it would indeed be error
for a judge to assume that a prosecutor of the same race as the
stricken juror would not engage in race-based discrimination,
there is no evidence on this record of this occurring. Instead,
after making the aside about the prosecutor’s race, the court
went on to thoroughly evaluate the government’s race-neu-
tral reasons for striking all three jurors. This is in stark con-
trast to the facts in Rutledge where, after the prosecutor stated
“for the record” that she too was African-American, the dis-
trict court failed to make any factual findings about credibility
that would have backed up the prosecutor’s race-neutral prof-
fer. Id. at 557, 560. The trial court in Rutledge simply declared
that the government offered a non-race-based reason for the
strike—the juror’s demeanor—but never evaluated the credi-
bility of that proffered reason. Id. at 560.
In contrast, in this case, the court put the government
through its paces, properly setting forth the Batson steps, and
then repeatedly pushing the government about its reasons for
striking Juror 24. The court inquired three times if proclaimed
internet use was the reason for the strike, and urged defense
counsel to persuade her that the reasoning was pretextual. See
R. 127 at 30–31. After overruling the Batson challenges for Ju-
rors 2 and 9 from the bench, the court took the matter of Juror
24’s strike under advisement and recessed to chambers to re-
search Batson issues. After spending the recess reading the
case law, she returned to the courtroom and made clear that
she understood precisely what she must consider when eval-
uating step three of a Batson challenge: “[T]he third step is the

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No. 21-2660 7
critical question [of the] persuasiveness of the prosecutor’s
justification for his peremptory strike, which comes down to
whether the trial court finds the prosecutor’s race-neutral rea-
son to be credible.” R. 127 at 35. The court then turned to as-
sessing the credibility and persuasiveness of the prosecutor’s
reasons for striking Juror 24 as follows:
The Supreme Court [and] the Seventh Circuit
have repeatedly held that when a prosecutor’s
proffered reason for striking a black panelist ap-
plies just as well to an otherwise-similar
nonblack panelist, who is permitted to serve,
that is evidence tending to prove purposeful
discrimination.
If the government had left juror number 13 on
the panel, the argument that he was not credible
in making the strike might be persuasive, but
the fact is that juror number 13, who was a white
similarly situated prospective venire person
was also struck.
In this case, the Court finds that the government
has provided a race-neutral reason for striking
the remaining black juror, number 24, because
he also provided that same reason for striking a
similarly situated white juror number 13, as
well as one of the reasons for number two, I be-
lieve.
Additionally, there are no similar nonblack pan-
elists who alleged to not use the Internet that are
being allowed to serve as a juror during this
trial. So, because he struck all of the persons

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8 No. 21-2660
who stated during venire that they did not use
the Internet, and the government’s indicated
that he doubts the veracity of those statements,
the Court, under the law, is going to find that
the defense has failed to meet the criteria out-
lined in the third step of the Batson challenge.
R. 127 at 34–35. No part of the court’s reasoning relied on the
race of the prosecutor. Although it would have been better
had the judge not mentioned the prosecutor’s race, there is no
evidence that this harmless error infected the court’s reason-
ing in evaluating the Batson challenge. On the contrary, be-
tween the time the court made that statement and the time she
issued her ruling, she researched the appropriate Batson justi-
fications. When she returned after researching, she an-
nounced the proper legal basis for the court’s evaluation of
pretext. Where there is no evidence that an error influenced
the outcome, and, in fact, evidence that it did not, we can set
the error aside as harmless. See, e.g., United States v. Lockwood,
840 F.3d 896, 901 & n.4 (7th Cir. 2016) (noting that a stray in-
correct statement by the court did not affect the court’s overall
analysis and was at most harmless error).
With the legal error out of the way, we can look to the dis-
trict court’s assessment of the government’s proffered reasons
for striking Juror 24. Howard alleges that the court erred by
improperly evaluating the peremptory strike and failing to
make demeanor findings. Once again, “the trial court’s deci-
sion on the ultimate question of discriminatory intent repre-
sents a finding of fact of the sort accorded great deference on
appeal and will not be overturned unless clearly erroneous.”
Miller-El I, 537 U.S. at 340 (internal citations omitted).

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No. 21-2660 9
Although a trial court need not conduct an evidentiary
hearing in all peremptory challenge situations, trial courts
“should state fully their credibility determinations on the rec-
ord so that such findings may receive the substantial defer-
ence to which they are entitled.” Morgan v. City of Chicago, 822
F.3d 317, 328, 331 (7th Cir. 2016). When making credibility de-
terminations, in some cases, the court must make an assess-
ment of the demeanor of the prospective juror, for example,
when the prosecution strikes a juror for appearing “agitated”
or “frustrated.” Id. at 329–30. In such a case, the court should
make its own explicit findings on the record of its assessment
of the juror’s demeanor rather than relying solely on the gov-
ernment’s contention. Rutledge, 648 F.3d at 560. Oftentimes,
however, the juror’s demeanor is not at issue, but rather the
trial court is assessing whether the prosecutor’s demeanor be-
lies a discriminatory intent. Morgan, 822 F.3d at 330–32; see also
Hernandez v. New York, 500 U.S. 352, 365 (1991) (stating that
“the best evidence” of discriminatory intent “often will be the
demeanor of the attorney who exercises the challenge”).
Howard asserts that the district court failed to assess inde-
pendently Juror 24’s demeanor, but the cases that Howard
cites in support of that argument are cases in which the de-
meanor of the juror was directly at issue. See Snyder, 552 U.S.
at 479 (prosecutor‘s justification for strike was that juror ap-
peared nervous); Rutledge, 648 F.3d at 560 (prosecutor‘s justi-
fication for strike was that juror “appeared agitated and also
frustrated”); United States v. McMath, 559 F.3d 657, 665 (7th
Cir. 2009) (prosecutor‘s justification for strike was that juror
“looked angry and not happy to be here”). In this case, the
demeanor of the juror was not at issue, only the credibility
and reasonableness of the prosecutor’s objective internet us-
age rule.

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10 No. 21-2660
In this case, the prosecutor stated that he uses confessed
internet usage as a proxy for truthfulness; he has a per se rule
that he does not believe those who deny using the internet.
Given the prosecutor’s rationale, the court does not need to
assess the credibility or demeanor of the juror. The prosecutor
in this case might be incorrect in his theory that people who
claim not to use the internet are lying. He also might be incor-
rect that these particular jurors were not telling the truth. The
government’s brief cites cases and research supporting the
prosecutor’s reasoning about internet usage—research that
Howard argues instead supports his contention that people
of Juror 24’s demographic are the most likely to not use the
internet. As an appellate court, we are not the fact-finders and
arbiters of the adequacy of the research on who does or does
not use the internet. The trial court’s role during the third step
of the Batson challenge was to determine whether the prose-
cutor’s explanation was credible. And as the Supreme Court
instructs, when assessing whether the prosecutor’s race-neu-
tral explanations are credible, the court can measure credibil-
ity “by, among other factors, the prosecutor’s demeanor; by
how reasonable, or how improbable, the explanations are;
and by whether the proffered rationale has some basis in ac-
cepted trial strategy.” Miller-El I, 537 U.S. at 339. Our cases
have oft said that “Batson and its progeny direct trial judges
to assess the honesty—not the accuracy—of a proffered race-
neutral explanation.” Lamon v. Boatwright, 467 F.3d 1097, 1101
(7th Cir. 2006) (emphasis in original); see also, e.g., United States
v. Hendrix, 509 F.3d 362, 371 (7th Cir. 2007); United States v.
Cruse, 805 F.3d 795, 808 (7th Cir. 2015); Elizondo, 21 F.4th at
466; United States v. Lovies, 16 F.4th 493, 500 (7th Cir. 2021). But
of course, at the margins honesty and accuracy overlap. As
the Supreme Court explained, at the third step, “the

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No. 21-2660 11
persuasiveness of the justification becomes relevant … . At
that stage, implausible or fantastic justifications may (and
probably will) be found to be pretexts for purposeful discrim-
ination.” Purkett v. Elem, 514 U.S. 765, 768 (1995). The more
inaccurate, or “silly or superstitious” the justification, the
more likely it will be found to be a pretext. Id. at 768. The in-
ternet-usage-denying theory is not so implausible that no rea-
sonable jurist could have found it credible.
In justifying his strike, the prosecutor explained that his
rationale for excluding Juror 24 from the panel was that “My
102-year-old great grandmother uses the Internet. I do not be-
lieve people when they say they don’t use the internet.” R. 127
at 30. He pointed out that he also struck Juror 13 who he ini-
tially thought would be a good candidate for the jury. Juror
13 was a white male who was married, had four children,
twelve grandchildren, and was a full-time pastor. We have
noted that “[o]ne way for defendants to satisfy their burden
at Batson step three is to identify a similarly situated, non-Af-
rican American juror” who shares the same situation or char-
acteristics with the stricken juror but whom the prosecutor
did not strike. United States v. Jones, 56 F.4th 455, 479 (7th Cir.
2022) (citing Miller-El II, 545 U.S. at 241). A trial court can also
measure credibility “by considering the offering party’s con-
sistency in applying its non-discriminatory justification.”
United States v. Stephens, 514 F.3d 703, 711 (7th Cir. 2008). “If a
prosecutor’s proffered reason for striking a black panelist ap-
plies just as well to an otherwise-similar nonblack who is per-
mitted to serve, that is evidence tending to prove purposeful
discrimination to be considered at Batson’s third step.” Miller-
El II, 545 U.S. at 241.

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12 No. 21-2660
Howard argues that these cases only allow comparison be-
tween the stricken juror of one race and a similarly situated
non-stricken juror of the opposite race—for example, if the
prosecutor struck a Black internet-use-denying juror but al-
lowed a white internet-use-denying juror to serve on the jury.
Under Howard’s theory a court cannot compare a stricken ju-
ror of one race to a similarly situated stricken juror of another
race, as was the case here where the prosecutor struck both a
Black internet-use-denying juror and a white internet-use-
denying juror. Howard argues that this would allow prosecu-
tors to evade Batson’s discrimination-ferreting test by finding
race-neutral commonality between Black jurors and white ju-
rors and simply striking a similarly situated white juror each
time it wished to strike a Black juror. We think this takes too
narrow a view of assessments of credibility. Credibility as-
sessments are holistic. Depending on the circumstances of the
strike, credibility assessments can include things like juror de-
meanor, prosecutor’s demeanor, patterns of strikes, disparate
questioning during voir dire, comparative juror analysis, and
consistency in applying non-discriminatory justifications. See
Morgan, 822 F.3d at 329; United States v. Corley, 519 F.3d 716,
721 (7th Cir. 2008). It is true that the comparison between Ju-
ror 24 and Juror 13 is not dispositive of the prosecutor’s cred-
ibility. Certainly, a court has more compelling evidence of a
lack of credibility if a prosecutor says that he eliminates any-
one who denies internet use and then strikes the Black juror
who made such a claim but not the white juror. But even
though the comparison in this case might supply less defini-
tive evidence, it provides evidence nevertheless. We agree
with Howard that these types of comparisons leave room for
manipulation, but so do other factors courts consider in cred-
ibility assessments. And just as we trust trial courts to detect

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No. 21-2660 13
incredible explanations with assessments of ethereal evidence
like “demeanor,” or to look for patterns in questioning and
strikes, we must also trust the expertise of the trial court to
look out for situations in which a prosecutor finds a trait that
pairs each stricken Black juror with a similarly situated white
juror as cover for race-based discrimination. We encourage
trial courts to vigilantly look for these types of patterns.
In this case, the district court judge, after listening to the
prosecutor’s rationales for his strikes, found those explana-
tions to be credible. It is true that much of her assessment cen-
tered on the consistency of the strikes between Juror 24 and
Juror 13, but she assessed the sincerity of the prosecutor’s be-
liefs in his professed internet abstention theory and found
him to be credible. We cannot say that the prosecutor’s theory
was so “implausible or fantastic” so as to leave us with no
choice but to conclude that the justification was “pretext[] for
purposeful discrimination.” Miller-El I, 537 U.S. at 339. We see
no exceptional circumstances that would cause us to depart
from our usual deference to the district court’s factual find-
ings and lead us to conclude that the court clearly erred. See
Foster, 578 U.S. at 500. The decision of the district court is
therefore AFFIRMED.

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