USA v. Ayodele Abolarinwa

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10199
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AYODELE ELIJAH ABOLARINWA,
a.k.a. Ayodele Oladapo Abolarinwa,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:21-cr-00028-KD-4
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2 Opinion of the Court 23-10199
____________________
Before J ILL PRYOR , NEWSOM , and B RANCH, Circuit Judges.
PER CURIAM:
Ayodele Elijah Abolarinwa appeals following his conviction
by a jury for conspiracy to commit wire fraud related to the filing
of fraudulent unemployment claims. Abolarinwa raises challenges
to the racial composition of the venire, the government’s use of
peremptory strikes, and the denial of his request to strike a
prospective juror for cause. After careful review, we affirm.
I. Background
A federal grand jury in the Southern District of Alabama
charged Abolarinwa, among other co-conspirators, with
conspiracy to commit wire fraud in violation of 18 U.S.C. § 1343 by
filing fraudulent unemployment claims using stolen personal
identifying information belonging to other individuals.
Initially, jury selection was set to begin on August 1, 2022,
but on that day, although counsel for both sides were present,
Abolarinwa, who was out on bond, was not present because of
transportation issues with the bus he took from his home in
Virginia to Alabama. So the district court dismissed the initial jury
venire and continued the case until September 2022.
Jury selection and voir dire began on September 6, 2022. The
forty-seven person venire was randomly generated by a computer
and composed of individuals who resided within the counties that
make up the Southern District of Alabama in accordance with the
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23-10199 Opinion of the Court 3
district’s jury plan. See Plan for the Qualification and Random Selection
of Grand and Petit Jurors (August 24, 2009), available at
https://perma.cc/LXR4-XG94. Thirty-nine of the venire
members were white, seven were black, and one was hispanic.
During voir dire, Abolarinwa, through counsel, stated that,
while he did not “know when would be the proper time” to raise
it, he wanted to “put an objection on the record [to] the make-up
of the jury,” because there were only seven black people in the
venire, one of whom “either [did not] show [up] or was excused.”
The district court overruled the objection, concluding that
Abolarinwa did not “meet [his] burden” and noting that, the “jury
was picked by a computer, and there [were] . . . four people excused
prior to coming today,” and the court was unaware of the excused
jurors’ races. Abolarinwa stated that one of those excused
individuals was black, but that he did not know why that person
was excused. The district court then noted that the “panel would
have been made up of the same people based on the computer’s
generation” and that the “computer ha[d] been approved by the
[Judicial Council for the] Eleventh Circuit.”1
1 The Jury Selection and Service Act, 28 U.S.C. § 1861, “seeks to ensure that
potential grand and petit jurors are selected at random from a representative
cross section of the community and that all qualified citizens have the
opportunity to be considered for service.” United States v. Bearden, 659 F.2d
590, 593 (5th Cir. 1981). “The Act provides that each district court shall devise
a written plan, known as a ‘local plan,’ to achieve the twin objectives of
nondiscrimination and opportunity of service. The plan must be approved by
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4 Opinion of the Court 23-10199
At Abolarinwa’s request, the district court explained to the
venire that Abolarinwa was not a natural born citizen and that
“[s]ome of the acts alleged in [the] indictment [were] alleged to
have been committed by people who are not U.S. citizens.” The
district court then asked, as requested by Abolarinwa, whether any
members of the venire had “any opinions about immigration that
would affect [their] ability to be fair and impartial in this case to the
defendant who is not a natural-born citizen.” Juror No. 3 indicated
that he would. Upon further questioning in a sidebar conference,
Juror No. 3 explained that his answer “depends on whether or not
it’s legal or illegal immigration.” The district court explained that
Abolarinwa was “a permanent resident” so it was “legal”
immigration. Juror No. 3 stated: “Okay. That’s all that matters,
legal or illegal,” and he confirmed that he would not have any
problem being fair or impartial to Abolarinwa. As a follow-up
question, the government then asked Juror No. 3 if he would be
“able to put aside the fact that [potential witnesses were] here
illegally and listen to what they say in their testimony and evaluate
that separately from [his] beliefs.” Juror No. 3 stated “[p]robably
not.”
After questioning, Abolarinwa moved to strike Juror No. 3
for cause based on his “strong . . . opinions” concerning
the judicial council of the circuit in which the district is located.” Id. at 593–
94.
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23-10199 Opinion of the Court 5
immigrants.2 The government objected, arguing that Juror No. 3
stated he could be fair, and although he expressed trouble with
“believing illegal immigrants,” the government thought it was
unlikely to call any illegal immigrants at trial. The district court
denied the strike for cause, noting that Juror No. 3 “seem[ed]
totally fine” with legal immigrants and Abolarinwa “is legal.”
Ultimately, Juror No. 3 was not seated on the jury.
The parties then addressed peremptory strikes.3 As relevant
here, the government sought to strike Juror No. 21, a black male.
The following colloquy then occurred:
[Defense Counsel]: Your Honor, I object to No. 21.
We are down to two black people in the venire with
the numbers down to—for the original pool, strike
pool. No. 21, to my knowledge, didn’t answer any
questions, and, you know, I believe it would be a
Batson[4] issue. Like I said, we are down to two out of
the entire pool with the numbers that we have.
2 Abolarinwa also moved to strike Juror No. 44 for cause and the government
agreed. The government separately moved to excuse Juror No. 37 for cause,
and Abolarinwa had no objection.
3 It appears from the transcript that the peremptory strikes were not discussed
on the record unless there was an objection. However, the “strike lists” in the
record show that the government sought to use peremptory strikes against
Jurors No. 9 (white), 21 (black), and 28 (white). Abolarinwa sought to strike
Jurors No. 3, 4, 10, 15, 18, 20, 22, 30, 11, 8, and 33 (all of whom were white).
4 Batson v. Kentucky, 476 U.S. 79 (1986).
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THE COURT: Of the pool that you’ve been given.
[Defense Counsel]: Yes, ma’am
THE COURT: So –
[Government Counsel]: Two I want to strike.
THE COURT: I don’t believe you’ve made your case.
Would you like to state it for the record.
[Government Counsel]: 21 is not employed. He has
never been employed. He is not collecting
unemployment insurance.[5] That’s the same reason
we struck No. 28,[6] who is also unemployed, not
collecting unemployment insurance. In addition,
with regard to 21, he has a previous arrest for forgery.
THE COURT: Those are race-neutral reasons. I find
that’s a race-neutral reason.
[Defense Counsel]: Thank you, Your Honor.
5 Juror No. 21 indicated on his questionnaire that he was age 45; black;
currently unemployed; not retired; that he had previously received or applied
for Social Security benefits; and that he had not been arrested or charged with
any prior criminal offenses. He left the section asking about his previous
occupations blank.
6 Juror No. 28 indicated on his questionnaire that he was age 28; white;
currently unemployed; not retired; had never applied for any of the specified
government benefits listed on the questionnaire; and had not been arrested or
charged with any prior offenses.
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23-10199 Opinion of the Court 7
The court then announced the jury, which consisted of two black
jurors (Jurors No. 7 and 23), one hispanic juror (Juror No. 5), nine
white jurors (Jurors No. 2, 6, 12, 13, 14, 16, 17, 24, 25), and an
alternate black juror, (Juror No. 34) and one alternate white juror,
(Juror No. 32).
Following the trial,7 the jury found Abolarinwa guilty, and
the district court sentenced him to 46 months’ imprisonment to be
followed by three years’ supervised release. Abolarinwa appealed.8
II. Discussion
Abolarinwa argues that (A) the racial composition of the
venire violated federal law; (B) the district court erred in overruling
his Batson objection to the government’s use of a peremptory strike
against Juror No. 21; and (C) the district court erred in denying his
7 Because all of Abolarinwa’s challenges to his conviction center on jury
selection, that underlying facts of the crime and evidence adduced at trial are
not relevant to this appeal and will not be discussed.
8 Abolarinwa dedicates a section of his brief to the timeliness of his appeal.
However, the government agrees that the appeal is timely. Therefore, any
challenge to the timeliness of the appeal is waived. See United States v. Lopez,
562 F.3d 1309, 1313 (11th Cir. 2009) (explaining that the deadline for filing a
notice of appeal in a criminal case is not jurisdictional but rather is a claims-
processing rule that may be waived by the government).
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8 Opinion of the Court 23-10199
request to strike Juror No. 3 for cause. We address each argument
in turn.
A. Racial composition of the venire
Abolarinwa contends that the total population of the five
counties from which the venire was comprised was 736,371, with
the black population for those counties totaling 201,174, or 27.3%.
But he asserts that black venire members made up less than 15% of
the venire, which equates to a 12.3% disparity and is statistical
evidence of unlawful racial disparity. Notably, he does not specify
in his counseled brief whether he is bringing his challenge to the
composition of the venire under the Sixth Amendment or the Fifth
Amendment to the Constitution or the Jury Selection and Service
Act, 28 U.S.C. § 1861—indeed he cites none of these authorities in
his brief. See United States v. Grisham, 63 F.3d 1074, 1077 (11th Cir.
1995) (“Challenges to the jury selection process may be based on
the fair cross-section requirement of the Sixth Amendment, the
equal protection component of the Fifth Amendment, or a
substantial failure to comply with the provisions of the [Jury
Selection and Service] Act.” (internal citations omitted)). Nor did
he specify in the district court under which of these authorities he
based his claim. We note that it is the defendant’s responsibility
to specify the basis for his objection, including on what authority
the objection is based, so that the district court can have the
opportunity in the first instance to address the alleged issue and
correct it to avoid wasting scare judicial resources. See United States
v. Straub, 508 F.3d 1003, 1011 (11th Cir. 2007) (“To preserve an issue
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23-10199 Opinion of the Court 9
for appeal, one must raise an objection that is sufficient to apprise
the trial court and the opposing party of the particular grounds
upon which appellate relief will later be sought. The objection
must be raised in such clear and simple language that the trial court
may not misunderstand it.” (quotations and internal citation
omitted)); United States v. Gallo-Chamorro, 48 F.3d 502, 507 (11th
Cir. 1995) (“To preserve an issue for appeal, a general objection or
an objection on other grounds will not suffice.”); United States v.
Kennedy, 548 F.2d 608, 612–14 (5th Cir. 1977)9 (holding that
defendant forfeited his challenge under the Jury Selection Service
Act by failing to properly preserve the issue for appeal). Regardless,
even if Abolarinwa had properly preserved his challenge, he is not
entitled to relief on any of these grounds.
“The Sixth Amendment to the Constitution grants every
criminal defendant the right to a speedy and public trial, by an
impartial jury. The Supreme Court has interpreted this right to
mean, among other things, that a petit jury venire must represent
a fair cross section of its community.” United States v. Perez-
Hernandez, 672 F.2d 1380, 1384 (11th Cir. 1982) (quotations
omitted).
To establish a prima facie violation of the fair
cross-section requirement, a defendant must show:
9 See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc)
(holding that all decisions from the Fifth Circuit Court of Appeals issued prior
to the close of business on September 30, 1981, are binding precedent in the
Eleventh Circuit).
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10 Opinion of the Court 23-10199
(1) that the group alleged to be excluded is a
distinctive group in the community, (2) that
representation of the group in venires is not fair and
reasonable in relation to the number of such persons
in the community, and (3) that the
underrepresentation is due to systemic exclusion of
the group in the jury-selection process.
United States v. Davis, 854 F.3d 1276, 1295 (11th Cir. 2017)
(quotations omitted).10 Importantly, when a defendant fails to
establish any one of these three elements, his claim under the Sixth
Amendment fails. United States v. Pepe, 747 F.2d 632, 649 (11th Cir.
1984).
Abolarinwa has failed to satisfy the third element which
requires him to show that the jury “selection procedure . . . is
susceptible of abuse or is not racially neutral . . . .” Castaneda v.
Partida, 430 U.S. 482, 494 (1977); Gibson v. Zant, 705 F.2d 1543, 1546
10 For purposes of the second element, we determine whether a given race
was fairly and reasonably represented in the venire by “compar[ing] the
difference between the percentage of [the relevant distinctive racial group] in
the population eligible for jury service and the percentage of [that group] in
the [jury] pool.” Davis, 854 F.3d at 1295. “[I]f the absolute disparity between
these two percentages is ten percent or less, the second element is not
satisfied.” Id. Here, the parties dispute the relevant statistics. Abolarinwa
argues that when the relevant black population is compared with the number
of black venire members, the disparity is 12.3 percent. Meanwhile, the
government argues that Abolarinwa’s statistical analysis is flawed and that the
disparity between the relevant population and the number of black venire
members was only 10%, meaning that Abolarinwa’s claim fails as a matter of
law. We need not resolve this dispute because, as we discuss further in this
opinion, Abolarinwa cannot satisfy the third element.
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23-10199 Opinion of the Court 11
(11th Cir. 1983) (same). There is no suggestion—either in his brief
or before the district court—that the Southern District of
Alabama’s Jury Plan, which uses a computer generated
randomized process to generate the venire, was not racially neutral
or was susceptible to abuse as a tool of discrimination. Rather,
Abolarinwa states simply that the alleged 12.3% racial disparity in
this case “cannot be waved off by pointing to a computer
program.” That assertion is not sufficient to meet Abolarinwa’s
burden of pointing to evidence tending to show that the “selection
procedure . . . is susceptible of abuse or is not racially neutral.”
Castaneda, 430 U.S. at 494; see also Berghuis v. Smith, 559 U.S. 314,
332–33 (2010) (emphasizing that the defendant bears the burden to
prove the third element as part of the prima facie case and generally
must point to more than statistical evidence tending to show a
disparity).
Abolarinwa’s claim fails under the Fifth Amendment for the
same reason.
To establish an equal protection violation in the jury
selection context, the defendant must show (1) that he
or she is a member of a group capable of being
singled out for discriminatory treatment; (2) that
members of this group were substantially
underrepresented on the venire; and (3) that the
venire was selected under a practice providing an
opportunity for discrimination.
Davis, 854 F.3d at 1295. Abolarinwa fails to identify anything about
the jury selection process that provides an opportunity for
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12 Opinion of the Court 23-10199
discrimination. See id. at 1296 (explaining that to satisfy the third
element, the defendant must identify something “about the jury
selection process that could be considered not racially neutral or
susceptible to abuse as a tool of discrimination” (quotations
omitted)).
Finally, Abolarinwa has forfeited any challenge under the
Jury Selection Service Act because he failed to comply with the
statutory procedural mechanisms for preserving such a claim. See
28 U.S.C. § 1867(d) (requiring the defendant to file a written
motion “containing a sworn statement of facts which, if true,
would constitute a substantial failure to comply with [the Act]”);
id. § 1867(e) (providing that “[t]he procedures prescribed by this
section shall be the exclusive means by which a person accused of
a Federal crime . . . may challenge any jury on the ground that such
jury was not selected in conformity with the provisions of this
title”); see also Kennedy, 548 F.2d at 612–14 (holding that, although
there was a violation of the Jury Selection Service Act, the
defendant was not entitled to relief because he forfeited the claim
by making only an oral objection and failing to comply with the
formal procedural requirements); United States v. Paradies, 98 F.3d
1266, 1278 (11th Cir. 1996) (“The Act requires that any motion filed
pursuant thereto be accompanied by a sworn statement of facts
which, if true, would constitute a substantial failure to comply with
the provisions of [the Act]. When that requirement is not satisfied,
the challenge to the selection process must fail . . . .” (alteration in
original) (internal citation and quotations omitted)).
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23-10199 Opinion of the Court 13
Accordingly, Abolarinwa is not entitled to relief under the
Sixth Amendment, the Fifth Amendment, or the Jury Selection and
Service Act.
B. Batson Challenge
Abolarinwa argues that the government’s use of
peremptory strikes disproportionately targeted the black venire
members in violation of Batson. And he maintains that the
government’s proffered race-neutral reasons were a pretext for
unlawful discrimination because there were “meaningful
differences” between the prospective black juror that the
government struck and the prospective white juror that the
government asserted it struck for similar reasons.11
“The Supreme Court in Batson established the now-familiar
three-part inquiry for evaluating whether a peremptory strike was
motivated by racial or ethnic discrimination.” United States v.
Ochoa-Vasquez, 428 F.3d 1015, 1038 (11th Cir. 2005) (citing Batson,
476 U.S. at 79). First, “the district court must determine whether
the party challenging the peremptory strikes has established a
prima facie case of discrimination by establishing facts sufficient to
support an inference of racial discrimination.” Id. (quotations
omitted). If the challenger has established a prima facie case, “the
11 The government argues that Abolarinwa has forfeited many of the
arguments he makes on appeal in support of his Batson claim because they
extend beyond the legal grounds he presented to the district court. We
conclude that we need not address this issue because, even considering
Abolarinwa’s arguments, he is not entitled to relief on his Batson claim.
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burden then shifts at step two to the striker to articulate a race-
neutral explanation for the challenged strike.” Id. Finally, at step
three, the district court must determine whether the striker’s
“stated reasons were the actual reasons or instead were a pretext
for discrimination.” Flowers v. Mississippi, 139 S. Ct. 2228, 2241
(2019). Importantly, “the ultimate burden of persuasion rests with,
and never shifts from, the opponent of the strike.” Ochoa-Vasquez,
428 F.3d at 1038 (quotations omitted).
Step two under Batson merely requires an explanation for
the strike that is legitimate, reasonably specific, and facially
nondiscriminatory. United States v. Folk, 754 F.3d 905, 914 (11th Cir.
2014); United States v. Alston, 895 F.2d 1362, 1366 (11th Cir. 1990).
The district court must then at step three “assess the plausibility of
that reason in light of all evidence with a bearing on it.” Miller El v.
Dretke, 545 U.S. 231, 252 (2005); Rice v. Collins, 546 U.S. 333, 338
(2006) (“Third, the court must then determine whether the
defendant has carried his burden of proving purposeful
discrimination. This final step involves evaluating the
persuasiveness of the justification proffered by the prosecutor.”
(internal citation omitted) (quotations omitted)). In other words,
at the third step, “the decisive question will be whether counsel's
race-neutral explanation . . . should be believed. This is a pure issue
of fact, subject to review under a deferential standard . . . [and]
peculiarly within a trial judge’s province.” McNair v. Campbell, 416
F.3d 1291, 1310 (11th Cir. 2005) (alterations in original) (internal
citation omitted).
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23-10199 Opinion of the Court 15
“When reviewing the district court’s ruling on Batson
challenges, the court's determination is entitled to great deference,
and must be sustained unless it is clearly erroneous.” United States
v. Robertson, 736 F.3d 1317, 1324 (11th Cir. 2013) (quotations
omitted); see also Flowers, 139 S. Ct. at 2244 (emphasizing review of
the trial court’s factual determinations on a Batson claim is “highly
deferential” and the “trial court’s ruling on the issue of
discriminatory intent must be sustained unless it is clearly
erroneous” (quotations omitted)).
Here, it appears that the district court assumed that
Abolarinwa had made out a prima facie case of racial discrimination
at step one because upon Abolarinwa’s objection to the striking of
Juror No. 21, the court invited the government to state its reasons
for striking Juror No. 21. The government explained that it struck
Juror No. 21 because he was unemployed, had never had a job, and
was not collecting unemployment benefits, which were the same
reasons that the government struck a white juror (No. 28). The
government also asserted that Juror No. 21 had a prior arrest for
forgery. The district court then concluded that these were
legitimate, race-neutral reasons.
Abolarinwa has not shown that the district court’s decision
was clearly erroneous. Although he quarrels with the
government’s statement that Juror No. 21 never worked—
highlighting that the juror did not affirmatively state that he had
never worked, but instead simply left the prior employer section of
his questionnaire blank—it was not unreasonable for the
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16 Opinion of the Court 23-10199
government to conclude based on the blank prior employment
section that Juror No. 21 had not worked before. Nor was it clearly
erroneous for the district court to accept this reason as a legitimate
non-pretextual reason for striking Juror No. 21 given that the case
was about unemployment benefits.12 Robertson, 736 F.3d at 1324;
United States v. Walker, 490 F.3d 1282, 1291 (11th Cir. 2007) (“Once
past the prima facie step, the district court’s determination
concerning the actual motivation behind each challenged strike
12 With regard to the government’s second proffered reason for the strike, for
the first time on appeal, Abolarinwa points out that the “Government also
incorrectly stated that” Juror No. 21 had a prior criminal arrest, pointing to the
jury questionnaire where he indicated that he had never been arrested. To the
extent that Abolarinwa contends that this incorrect statement constitutes
evidence that the government’s proffered reasons were pretextual, we
disagree. First, we note that Abolarinwa never raised this objection in the
district court, which would have afforded the government an opportunity to
explain on what information it based this statement or otherwise correct the
record. Second, while the court may have erred in crediting the prior criminal
arrest record reason, ultimately there is nothing in the record suggesting that
the true reason for striking Juror No. 21 was race, especially given the validity
of the government’s unemployment-based reason. And there was no
evidence that the government exercised a pattern of peremptory strikes
against black venire members—it used only three of its six peremptory strikes
to strike two white jurors and one black juror. Furthermore, a total of three
black jurors were empaneled on the fourteen person jury, although one served
as an alternate. Thus, there is no evidence that the government unlawfully
struck jurors based on race. Hernandez v. New York, 500 U.S. 352, 359 (1991)
(explaining when evaluating a Batson claim that “[d]iscriminatory purpose . . .
implies more than intent as volition or intent as awareness of consequences.
It implies that the decisionmaker . . . selected . . . a particular course of action
at least in part because of, not merely in spite of, its adverse effects upon an
identifiable group.” (ellipses in original) (quotations omitted)).
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23-10199 Opinion of the Court 17
amounts to pure factfinding, and we will reverse only if the
decision is clearly erroneous.”).
C. Denial of request to strike Juror No. 3 for cause
Abolarinwa argues that the district court erred in denying
his request to strike Juror No. 3 for cause based on Juror No. 3’s
expressed views on immigration.
We review a district court’s decision whether to excuse a
prospective juror for cause for an abuse of discretion.13 United
States v. Pendergrass, 995 F.3d 858, 871 (11th Cir. 2021). “[T]he
abuse of discretion standard allows a range of choice for the district
court, so long as that choice does not constitute a clear error of
judgment.” United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir.
2004) (en banc) (quotations omitted). “We have recognized that
there are few aspects of a jury trial where we would be less inclined
to disturb a trial judge’s exercise of discretion than in ruling on
13 The government argues that we should review this claim for plain error
because on appeal Abolarinwa asserts for the first time that Juror No. 3 should
have been struck for cause based on his views “towards illegal immigrants”
because it was unclear whether Juror No. 3 “would conclude that
[Abolarinwa’s] circumstances (marrying an American only for her to divorce
him a few years later) made [Abolarinwa] ‘illegal’ in [Juror No. 3’s] eyes.”
While we agree that Abolarinwa did not make this exact cause argument
below instead relying on a general concern with Juror No. 3’s “pretty strong”
opinions concerning illegal immigrants, we need not resolve whether plain
error should apply to his claim on appeal because he is not entitled to relief
under the traditional abuse of discretion standard.
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challenges for cause in empaneling of a jury.” Davis, 854 F.3d at
1296 (quotations omitted).
Here, following initial and rehabilitative questioning of
Juror No. 3, the district court declined to excuse him for cause
because he confirmed that he could be fair and impartial to
Abolarinwa. Based on Juror No. 3’s answers to the questioning and
affirmation that he could be fair and impartial we cannot say the
district court abused its discretion. Frazier, 387 F.3d at 1259
(recognizing that “the abuse of discretion standard allows for a
range of choice” and “there will be occasions in which we affirm
the district court even though we would have gone the other way
had it been our call” (quotations omitted)). Moreover, Abolarinwa
does not argue that he suffered any harm due to the denial of his
cause challenge—and he would be hard pressed to do so because
Juror No. 3 was not seated on his jury. Therefore, his claim must
fail. Davis, 854 F.3d at 1296 (concluding that the defendant’s claim
failed because, among other reasons, he failed to show “that he
suffered any harm due to the court’s denial of his for-cause
challenge).
III. Conclusion
For the above reasons, Abolarinwa is not entitled to relief on
any of his claims. Accordingly, we affirm his conviction.
AFFIRMED.
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