Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-17-2003

USA v. DeJesus
Precedential or Non-Precedential: Precedential

Docket No. 02-1394




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

Recommended Citation
"USA v. DeJesus" (2003). 2003 Decisions. Paper 162.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/162


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                    PRECEDENTIAL

                                            Filed October 17, 2003

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                            No. 02-1394


                 UNITED STATES OF AMERICA
                                   v.
                         JERRY DEJESUS,
                                                Appellant

      On Appeal from the United States District Court
              for the District of New Jersey
   District Court Judge: Honorable Jerome B. Simandle
                  (D.C. No. 99-cr-00728)

                 Argued on December 13, 2002
    Before: FUENTES, STAPLETON, Circuit Judges, and
               O’KELLEY,* District Judge.

               (Opinion Filed: October 17, 2003)

                          George S. Leone
                          Office of United States Attorney
                          970 Broad Street, Room 700
                          Newark, New Jersey 07102




* Hon. William C. O’Kelley, United States District Judge for the Northern
District of Georgia, sitting by designation.
                                2


                      Glenn J. Moramarco [Argued]
                      Office of United States Attorney
                      Camden Federal Building &
                       Courthouse
                      401 Market Street
                      P.O. Box 2098, 4th Floor
                      Camden, New Jersey 08101
                           Attorneys for Appellee
                      Lisa C. Evans [Argued]
                      Office of Federal Public Defender
                      800 Cooper Street, Suite 350
                      Camden, New Jersey 08102
                           Attorney for Appellant


                 OPINION OF THE COURT

FUENTES, Circuit Judge:
  The primary issue in this appeal is whether the
government violated the Equal Protection Clause when it
peremptorily struck two African American, presumably
Christian, jurors from the venire. The District Court held
that race was not a factor in the strikes and that the
government’s religion-related reasons for the strikes were
permissible. Because we are satisfied that the government’s
peremptory strikes in this case were based on the jurors’
heightened religious involvement rather than a specific
religious affiliation, and because they were not racially
motivated, we will affirm.

                      I.    Background
  Following a report of a stolen car and a high-speed
pursuit, Jerry DeJesus was stopped, arrested, and found to
be carrying a firearm and two magazine clips in his jacket
pocket. Due to a prior felony conviction, DeJesus was
charged with the illegal possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g)(1).
DeJesus’ first trial ended in a mistrial after the jury was
unable to reach a verdict. After a three-day retrial, the jury
                                   3


found him guilty. Thereafter, DeJesus was sentenced to a
prison term of 110 months, three years of supervised
release, and a special assessment of $100. DeJesus filed a
timely notice of appeal. In addition to DeJesus’ jury
selection claim, he appeals his sentence. We will set forth
only the facts that relate to these two issues.

                        A.   Jury Selection
  Jury selection for DeJesus’ retrial was conducted in three
phases. First, the prospective jurors were asked to complete
a questionnaire. Second, the District Court conducted
individual voir dire of prospective jurors. Third, the
government and the defense had an opportunity to exercise
their statutorily-allotted peremptory strikes.
  During the selection process, prospective juror Ronald
McBride revealed that a cousin to whom he had been close
had been murdered, but that he had learned to forgive the
murderer. (App. at 126). On the juror questionnaire
McBride stated that: (a) his hobbies involve civic activities
with his church; (b) he reads the Christian Book
Dispatcher; (c) he holds several biblical degrees; (d) he is a
deacon and Sunday School teacher in the local church;
and, (e) he sings in a couple of church choirs. 

127. Prospective juror James Bates revealed that: (a) he is
an officer and trustee in his church; (b) he reads the Bible
and related literature; and, (c) his hobbies are church
activities. 

130.
  The government peremptorily struck Bates and McBride.
As a result, defense counsel posed a Batson challenge.2
Defense counsel asserted that the only thing Bates and
McBride had in common was that they were both African
American. She also pointed out that there was only one
other African American juror remaining in the jury pool.3

2. A Batson challenge refers to the procedure by which a party contests
the exercise of a peremptory strike thought to be exercised in violation
of the Equal Protection Clause. See Batson v. Kentucky, 

, 89
(1986); Hernandez v. New York, 

, 358-59 (1991).
3. The District Court corrected the record in its January 24, 2002
opinion by stating that there was a fourth African American man present
in the jury pool who had not yet been called. (App. at 14).
                               4


The District Court asked the government to state the
reasons for the strikes.
   In response, the government explained that the strike
against McBride was based on the juror’s high degree of
religious involvement and his ability to forgive his cousin’s
murderer, both of which might make him reluctant to
convict. 

In regard to the strike against Bates,
the government explained that when Bates was brought
“from the jury pool up into the box and throughout the
duration,” the juror “looked the government’s way and then
turned his eyes away several times.” 

According
to the government, Bates’ unwillingness to make eye
contact demonstrated a possible anti-government prejudice.
The government also explained that Bates’ “fairly strong
religious beliefs” might prevent him from rendering
judgment against another human being. 

Court asked the government if it was
“undervaluing” the fact that Bates and McBride “answered
questions to the effect that they would follow the law and
that they would consider only the evidence in this case.” 

The government responded, “No, your Honor, I don’t
think we are. . . . [T]he government submits that the
answers about the strong [religious] beliefs outweigh, in
this case, their ability to be fair and impartial jurors.” 

  Defense counsel responded that peremptory strikes based
on religion would be just as improper as those based on
race, and urged the District Court to grant the Batson
challenge on that ground as well. 

Counsel
continued to argue, though, that the government’s stated
reasons were a pretext for racial discrimination. 

32. As proof, defense counsel pointed to the fact that the
same two government attorneys did not strike Jacquelin
Wood as a juror in DeJesus’ first trial. 

Wood was
a minister who had several degrees in different religious
studies. 

the government stated that “Ms.
Wood did have some religious convictions. . . . She was not
stricken. But, again, we believe we’ve learned from the
experience. Why we’re all here today on a retrial, it may
very well have been, your Honor, some type of religious
                              5


belief that infected or paraded into the jury’s province in
the first trial.” 

  The District Court accepted the government’s stated
reasons for the peremptory strikes against jurors Bates and
McBride, and denied defense counsel’s Batson challenge.

The District Court explained its understanding
that the defendant’s challenge was not “a challenge based
on some denomination of religion, but it is a challenge
based upon how the jurors chose to spend their time,
reading the bible.” 

   Thereafter, the government used another peremptory
strike to remove prospective juror George B. Pressey, a
Caucasian man, from the jury pool. 

This juror
listed his interests as being active in his church, including
serving on the board of trustees, heading up the building of
a new sanctuary, and being in charge of the ushering
department. 

The government was not called
upon to explain its reasons for striking Pressey.
  The final jury, including one alternate, was comprised of
three African Americans, nine Caucasians, and one
Hispanic. There were six men and seven women. The
government had three of its six peremptory strikes
remaining, and the defense had three of its ten strikes
remaining. 

n.2.
  The next day, defense counsel moved for a mistrial on the
basis of the Batson objections. 

Counsel argued
that the government’s peremptory strikes against Bates and
McBride were impermissibly motivated by either the race or
the religious affiliation of the jurors. 

Counsel
also belatedly objected to the peremptory strike of Pressey,
a Caucasian man, because that strike, too, was motivated
by his religious affiliation. 

According to defense
counsel, the religious denominations of Bates, McBride,
and Pressey were clearly Christian because “they stated
that they studied and read the Bible.” 

In
response, the government stated that it had “no idea” as to
the specific religious affiliation of the stricken jurors
because that was not developed during voir dire. 

The District Court provisionally denied the mistrial
application and allowed the trial to go forward, pending
additional research on the issue. 

                              6


                B.   District Court Opinion
  On January 24, 2002, the District Court issued an
opinion denying DeJesus’ mistrial application. The District
Court held that “while Batson may extend to protect against
striking a potential juror based upon the juror’s
membership in a particular religious denomination having
no relevance to the issues in the case, none of these jurors
were struck by the government upon an impermissible
ground.” 

                       C.   Sentencing
   During the sentencing proceeding on January 25, 2002,
defense counsel objected to the four-level upward
adjustment recommended by the Probation Department
under United States Sentencing Guidelines § 2K2.1(b)(5).
The District Court identified the issue as “whether the
defendant possessed a firearm in connection with another
felony offense of car theft and receiving stolen property.” 

Defense counsel argued that the government had
failed to meet its burden of proving that there was a
connection between DeJesus’ possession of a firearm and
his commission of another felony offense. In fact, counsel
asserted that “the firearm played no role in the actual car
theft. He did not use the gun in any manner to facilitate the
car theft.” 

argued that the fact that
DeJesus did not actually display the gun during the car
theft is of no moment under the case law; the mere fact
that he had a firearm in his possession emboldened him to
steal the car. 

   The District Court found that DeJesus had a firearm in
his right jacket pocket when he was arrested, which was
within 10 to 15 minutes of the car theft. The District Court,
concluding that it is reasonable to infer that the purpose of
possessing a handgun during a robbery is to facilitate the
offense, stated as follows:
    [T]he unloaded .380 semi-automatic, chrome with
    black handle, presents an intimidating sight, whether
    loaded or unloaded. . . . It is a reasonable inference
    that DeJesus would readily use it for intimidation
    purposes if someone questioned or tried to intervene in
                                    7


     his car thievery and escape. . . . The crime of car theft
     is a crime for which it’s logical that the defendant’s
     possession of the firearm was in furtherance of his
     attempts to successfully steal the vehicle. He was
     stealing the vehicle from a residential street. It was not
     unlikely that he would encounter someone during the
     course of stealing the car. His mindset at the time was
     extremely adverse to being apprehended, perhaps
     through recognition of his own prior criminal record.

Accordingly, the District Court ruled that the
government had met its burden of proving the connection
between the firearm possession and the car theft for the
purpose of imposing the four-level upward adjustment
under U.S.S.G. § 2K2.1(b)(5), and overruled defense
counsel’s objection. 

275.

         II.   Jurisdiction and Standard of Review
   The District Court had jurisdiction over this criminal
matter pursuant to 18 U.S.C. § 3231. We have appellate
jurisdiction to review the final judgment and sentence
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §§ 3742(a)(1),
(2).
   We review the District Court’s factual determination of
whether discriminatory intent motivated the government’s
peremptory strikes for clear error. See United States v.
Uwaezhoke, 

, 394 (3d Cir. 1993), cert. denied,

(1994). Our review of the District Court’s
interpretation and application of the Sentencing Guidelines
is plenary, United States v. Johnson, 

, 683 (3d
Cir. 1998), but we review the District Court’s factual
findings at sentencing for clear error. United States v.
Loney, 

, 288 (3d Cir. 2000).

                            III.   Analysis
  DeJesus raises two issues on appeal. First, he argues
that the government peremptorily struck prospective jurors
Bates and McBride in violation of the Equal Protection
Clause because the strikes were impermissibly based on
the jurors’ race or religious affiliation.4 Second, he argues

4. DeJesus is not challenging the government’s strike against Pressey on
appeal because “religious affiliation was not the primary reason for that
                                   8


that there was insufficient evidence to support the District
Court’s conclusion that DeJesus’ possession of a firearm
facilitated his theft of a car, thus warranting the application
of the four-level sentence enhancement in Sentencing
Guideline 2K2.1(b)(5).

    A.   Challenges to the Government’s Peremptory
                         Strikes
   DeJesus presses two different challenges to the
government’s peremptory strikes against Bates and
McBride. He argues that the government’s stated reasons
were a pretext for racial discrimination, which the Supreme
Court determined in Batson v. Kentucky, 

(1986), violates the Equal Protection Clause. He also argues
that Batson extends to peremptory strikes based on
religious affiliation and that the government impermissibly
struck Bates and McBride on the basis of their Christian
affiliation.
  We pause initially to consider generally the role of
peremptory challenges. Peremptory challenges are a part of
our common law heritage and play a crucial part in
empaneling fair and impartial juries. The decision to
exercise a peremptory strike need not be supported by any
reason. It is usually based on educated guesses about
probabilities based on the limited information available to
an attorney about prospective jurors. The challenge is
intended for those situations in which an attorney cannot
articulate a specific conflict, but has some reason to believe
a juror may be less desirable than other jurors who may be
called. See 

n.5. Nonetheless,
the Supreme Court established in Batson that in order to
maintain the “dignity of persons” and the “integrity of the
courts,” the Equal Protection Clause must prevent
prosecutors from using peremptory strikes to remove jurors
on the basis of race. Powers v. Ohio, 

, 402
(1991). The Supreme Court extended that logic to
peremptory strikes based on gender in J.E.B. v. Alabama ex

strike and the defendant did not object to the strike at the time it was
exercised.” (DeJesus’ Opening Brief at 31 n.6).
                                     9


rel. T.B., 

(1994). But it remains the rule that
peremptory strikes are presumptively valid until it is shown
that they were exercised on an unconstitutional basis, such
as race or gender, and they continue to serve an important
role in empaneling fair and impartial juries. Against this
background, we consider defendant’s race and religion-
based challenges.

                    1.    Race-based Challenge
  In Batson, the Supreme Court held that “the Equal
Protection Clause forbids the prosecutor to challenge
potential jurors solely on account of their race . . 

. In Hernandez v. New York, the Court
summarized the process to be followed in a criminal case
when defense counsel challenges the government’s
peremptory challenge:
     In Batson, we outlined a three-step process for
     evaluating claims that a prosecutor has used
     peremptory challenges in a manner violating the Equal
     Protection Clause. . . . First, the defendant must make
     a prima facie showing that the prosecutor has
     exercised peremptory challenges on the basis of race.
     Second, if the requisite showing has been made, the
     burden shifts to the prosecutor to articulate a race-
     neutral explanation for striking the jurors in question.
     Finally, the trial court must determine whether the
     defendant has carried his burden of proving purposeful
     discrimination.

, 358-59 (1991) (citations omitted).
  In order to make a prime facie showing, the defendant
must show that the government has exercised peremptory
challenges to remove members of a particular race from the
venire.5 

. When, as in this case, the

5. We note that DeJesus, a Hispanic man, is challenging the strikes of
two African American jurors on the basis of their race. The racial
difference between DeJesus and the stricken jurors is irrelevant for the
purpose of posing a Batson challenge. See 

(holding that “race is irrelevant to a defendant’s standing to object to the
discriminatory use of peremptory challenges”).
                             10


government offers an explanation for its peremptory strikes
before the district court has addressed the adequacy of the
prima facie showing, “any issue regarding the existence of
a prima facie showing of discrimination becomes moot
. . . .” 

; see also 

. Accordingly, we will turn to the second
prong of the Batson analysis.
  At the second prong of the Batson analysis, we examine
the government’s explanation to determine if it was facially
race-neutral. The second step “does not demand an
explanation that is persuasive, or even plausible.” Purkett v.
Elem, 

, 768 (1995). “Unless a discriminatory
intent is inherent in the prosecutor’s explanation, the
reason offered will be deemed race neutral.” 

.
  With respect to McBride, the government explained that
the strike was based on the juror’s ability to forgive his
cousin’s killer and a suspicion that the juror’s strong
religious beliefs would prevent him from rendering
judgment against another human being. (App. at 126). The
government added that McBride had indicated on the juror
questionnaire that he reads the Christian Book Dispatcher,
holds several biblical degrees, and is a deacon in the local
church, and that these factors tend to indicate that
McBride would “hesitate to pass judgment on someone.” 

With respect to Bates, the government noted that
when the juror was brought “from the jury pool up into the
box and throughout the duration,” the juror “looked the
government’s way and then turned his eyes away several
times.” 

In addition to its worry about a possible
anti-government prejudice, the government was concerned
that Bates’ “fairly strong religious beliefs,” might prevent
him from rendering judgment against another human
being. 

of Bates’ strong religious beliefs, the
government cited Bates’ statements that he only reads the
bible and holds an office in the church. 

Court found the government’s race-neutral
explanations to be facially valid. We agree with that finding,
and, in any event, DeJesus does not challenge it on appeal.
Instead, he argues that the government’s explanations were
                              11


pretextual, and that the District Court’s finding as to the
third prong of the Batson analysis was clearly erroneous.
  With respect to the third prong, the District Court found
that “the mix of reasons articulated by the prosecution
team, and confirmed in several instances by counsel’s
contemporaneous notes of the jurors’ characteristics,
represent the true and sincere reasons. The defendant thus
has not demonstrated that the government has engaged in
purposeful discrimination on racial . . . grounds in
excluding these jurors.” (App. at 35).
  Whether the government has engaged in impermissible
discrimination during jury selection is a matter that is
uniquely within the province of the trial judge. As the
Supreme Court has noted, “[i]n the typical peremptory
challenge inquiry, the decisive question will be whether
counsel’s race-neutral explanation for a peremptory
challenge should be believed. There will seldom be much
evidence bearing on that issue, and the best evidence often
will be the demeanor of the attorney who exercises the
challenge. As with the state of mind of a juror, evaluation
of the prosecutor’s state of mind based on demeanor and
credibility lies ‘peculiarly within a trial judge’s province.’ ”

(quoting Wainwright v. Witt,

, 428 (1985)); see also 

n.21. “We must accept the factual determination of the
district court unless that determination ‘either (1) is
completely devoid of minimum evidentiary support
displaying some hue of credibility, or (2) bears no rational
relationship to the supportive evidentiary data.’ ”

(quoting Haines v. Liggett
Group, Inc., 

, 92 (3d Cir. 1992)).
   The government’s observation that Bates and McBride
were highly involved in religious activities is supported by
the record. In responding to the juror questionnaire, Bates
said that he reads “a lot of bible literature, and the bible,”
and that his hobbies “are church activities, and [he is] an
officer of the church and trustee.” (App. at 91). Similarly,
McBride said that he reads “the Press and magazines, the
CBD Christian Book Distributor,” he has “several . . .
biblical degrees,” and his hobbies are civic and church-
related, including serving as a deacon, Sunday school
                               12


teacher, and member of the choir. 

The
government’s observation that McBride had forgiven his
cousin’s killer is based on the following exchange:
    The Court: Is there anything about [the shooting of
    your cousin], and how it affects you, that makes it
    difficult for you to be a juror in this case?
    Juror #5: Ten years ago, yes. But today, no, because
    I’ve learned to forgive.

The government’s observation that Bates “looked
the government’s way and then turned his eyes away
several times” was included in the government’s voir dire
notes. 

   Not only are the government’s reasons supported by the
record, but they also bear a “hue of credibility.” 

. The government used peremptory strikes
to remove Bates, McBride, and Pressey from the jury. The
common thread among these strikes was the government’s
concern that the religious beliefs of the jurors as reflected
by their reading choices, hobbies, statements, and
demeanor in court would tend to make them unable or
unwilling to pass judgment on another human being. The
government’s concern stemmed in part from the fact that it
did not strike juror Wood, who had strong religious
convictions, during the voir dire for DeJesus’ first trial.
(App. at 132-33). The first trial resulted in a hung jury and
a mistrial, and the government speculated that “it may very
well have been . . . some type of religious belief that
infected or paraded into the jury’s province in the first
trial.” 

The government stated that it had
“learned from the experience.” 

’s stated
concern about strong religious beliefs during voir dire for
the second trial is credible given its suspicion regarding
juror Wood’s religious views having caused the mistrial.
Accordingly, there is no reason to disturb the District
Court’s credibility determination. 

(“As with the state of mind of a juror, evaluation of the
prosecutor’s state of mind based on demeanor and
credibility lies ‘peculiarly within a trial judge’s province.’ ”).
  Nonetheless, DeJesus argues that “the reasons offered by
the government for the strikes . . . were completely
                              13


irrelevant to the stricken jurors’ ability to perform as jurors
in a particular case.” (DeJesus’ Reply Brief at 1). This
argument is not persuasive. Batson requires the party
opposing a challenge to articulate a non-pretextual, race-
neutral reason for exercising the strike. However, Batson
does not require the party to show that the reason
articulated is relevant to a juror’s suitability. In fact,
peremptory strikes are available, in large part, because
“. . . it is not feasible for lawyers to know much about
individual jurors. Counsel must rely on educated guesses
about probabilities based on their limited knowledge of a
particular juror and their own life experiences.” 

n.5.
   DeJesus also raises a disparate impact argument with
respect to the government’s reasons for striking Bates and
McBride. He asserts that “[i]t is also clear that strong
affinity to the Bible or bible studies is a characteristic
identified with large segments of the African-American
population. Consequently, peremptory strikes predicated
upon nothing more than Bible-based Christian religious
orientation, with no evidence of an effect on juror
impartiality or ability, inevitably results in over-application
to African-Americans. In short, the reason expressed, if
applied uniformly, is a proxy for race which leads to the
inescapable conclusion that the strikes of Bates and
McBride were motivated by race.” (DeJesus’ Opening Brief
at 26-27).
  The first problem with DeJesus’ disparate impact
argument is that it was not raised during voir dire. Where,
as here, the defendant did not rely “upon the alleged
disparate impact of a tendered explanation, the trial judge
[had no] duty to stop in the middle of the voir dire and
consider whether the tendered explanation may have [had]
such an impact.” 

n.4. The
second problem with the disparate impact argument is that
there is no evidentiary support for it in the record. Even
assuming DeJesus is correct that “strong affinity to the
Bible or bible studies is a characteristic identified with large
segments of the African-American population,” there is
nothing in the record to indicate that the government was
aware of this correlation or had any intent to act on the
                                  14


basis of such a correlation. Without proof to that effect,
there is simply no merit to DeJesus’ post hoc disparate
impact argument. See 

-60
(quoting Arlington Heights v. Metropolitan Housing
Development Corp., 

, 264-65 (1977)) (“Proof of
racially discriminatory intent or purpose is required to
show a violation of the Equal Protection Clause.’ ”); 

(holding that “[e]ven strikes based on
characteristics that are disproportionately associated with
one gender could be appropriate absent a showing of
pretext”).
   The government’s decision to strike Pressey and the final
composition of the jury also negate DeJesus’ argument.
Pressey, like Bates and McBride, listed religious activities
and reading materials on his juror questionnaire. As it did
with respect to Bates and McBride, the government used a
peremptory strike to remove Pressey from the jury. Unlike
Bates and McBride, however, Pressey was Caucasian. The
use of a strike to remove Pressey gives credence to the
government’s race-neutral explanation for striking Bates
and McBride. Another factor that makes the government’s
race-neutral explanation more believable is that one
Hispanic and three African Americans were seated in the
final jury, and the government had three peremptory
strikes remaining.6
  In sum, the District Court did not clearly err in
concluding that the government’s explanations for striking
Bates and McBride were not a pretext for racial
discrimination.

                 2.   Religion-based Challenge
  In addressing the Batson challenge, the District Court
assumed that “the categorical striking of a juror based

6. DeJesus argues that the government struck Pressey only in order to
lend credibility to its earlier-stated reasons for striking Bates and
McBride. DeJesus argues in a similar vein that the government did not
strike the remaining minority jurors in order to avoid an appearance of
racial prejudice since it had already used its first two strikes against
African Americans. These points were not pressed in the trial court and,
in any case, we find them to be without merit.
                                      15


upon denomination affiliation . . . would be constitutionally
offensive to the guarantee of free religious affiliation.” (App.
at 29). The District Court found, however, that “[t]he
reasons stated by the government in this case point to the
prosecution’s concerns about inclinations of these potential
jurors manifested by their unusual degree of involvement in
church activities and religious readings, but not directly
associated with a specific religion, that may affect the
jurors’ judgment of others.” 

  DeJesus argues that the District Court correctly assumed
that a strike based on a juror’s religious affiliation would be
unconstitutional.7 DeJesus maintains that the stricken

7. Neither the Supreme Court nor this Court has ruled on this issue. See
Davis v. Minnesota, 

(1994) (denying certiorari to appeal
from Minnesota Supreme Court decision declining to extend Batson to
religion); United States v. Clemmons, 

, 1158 n. 6 (3d Cir.
1990) (declining to consider claim of religious discrimination in exercise
of peremptory strike because issue raised for the first time on appeal).
  There is no clear consensus among the other Circuits on this issue.
See e.g. United States v. Stafford, 

, 1114 (7th Cir. 1998)
(stating in dicta that “[i]t would be improper and perhaps
unconstitutional to strike a juror on the basis of his being a Catholic, a
Jew, a Muslim, etc.”, but holding that because “status of peremptory
challenges based on religion is unsettled,” allowing strike based on
religion was not plain error); United States v. Berger, 

, 120
(2d Cir. 2000) (declining to decide whether Batson extends to strikes
based on religious affiliation because prosecutor provided a reason for
the strike based on something other than juror’s membership in a
protected class).
  The state courts are not uniform in their approach to this issue either.
Compare State v. Fuller, 

, 279, 

, 397
(N.J. App. Div. 2002) (finding that exclusion of jurors based on religious
affiliation would violate the state constitution’s Equal Protection Clause);
State v. Purcell, 

, 326, 

, 120 (Ct. App. Ariz.
2001) (holding that Batson encompasses peremptory strikes based upon
religious affiliation or membership); Thorson v. State, 

, 594
(Miss. 1998) (holding that state constitutional and statutory law prohibit
the exercise of peremptory challenges based solely on a person’s
religion); with Casarez v. State, 

, 496 (Ct. Crim. App.
Texas 1994) (en banc) (holding that “interests served by the system of
peremptory challenges in Texas are sufficiently great to justify State
implementation of choices made by litigants to exclude persons from
service on juries . . . on the basis of their religious affiliation.”); State v.
Davis, 

, 771 (Minn. 1993) (declining to extend Batson to
strikes on the basis of religious affiliation).
                             16


jurors’ religious affiliations were made apparent by their
responses to the questionnaires, in which they mentioned
“key symbols of Christianity” such as the bible and bible
literature, Sunday school, and the church choir. (DeJesus’
Opening Brief at 32). In response, the government insists
that neither the Court nor the lawyers were aware of the
religious affiliations of Bates or McBride during voir dire.
(Government’s Brief at 39-40). The government argues that
the strikes were based only on the jurors’ beliefs and that
strikes based on beliefs, even if religiously-inspired, are
permissible. 

n.15. The government also directs
our attention to Rico v. Leftridge-Byrd, 

, 183
(3d Circ. 2003), for the proposition that Batson protection
should not be extended to a group unless the group had
been singled out for disparate treatment in the past and
had been disparately represented on juries.
   Because we affirm the District Court’s finding that the
government’s strikes were based on the jurors’ heightened
religious involvement rather than their religious affiliation,
we need not reach the issue of whether a peremptory strike
based      solely   on    religious   affiliation  would    be
unconstitutional. Bates and McBride did not state their
religious affiliations during voir dire. Of course, it is
certainly fair to infer, as DeJesus has done on appeal, that
the jurors are Christian based on their questionnaire
responses. But the government did not refer to the religious
affiliation of either juror in articulating its reasons for
striking Bates and McBride. Instead, the government said
that their unusual amount of religious activity suggested
strong religious beliefs, which could prevent them from
convicting the defendant. The District Court agreed, stating
that: “faced with a prospective juror whose answers to
neutral questions regarding hobbies, pastimes, reading
materials, television programs and the like reveal a rather
consuming propensity to experience the world through a
prism of religious beliefs, it is rational for a prosecutor to
act upon the concern about the reluctance to convict.”
(App. at 30-31).
  Even assuming that the exercise of a peremptory strike
on the basis of religious affiliation is unconstitutional, the
exercise of a strike based on religious beliefs is not.
                               17


Addressing the precise issue presented in this case, the
Seventh Circuit held that “[i]t is necessary to distinguish
among religious affiliation, a religion’s general tenets, and a
specific religious belief. . . . . It would be proper to strike [a
juror] on the basis of a belief that would prevent him from
basing his decision on the evidence and instructions, even
if the belief had a religious backing . . . .” 

. Several state courts have made a similar
distinction between strikes based on beliefs and
membership in a protected class. See, e.g., Fuller, 356 N.J.
Super. at 

(finding permissible a
peremptory strike based on prosecutor’s inference from
juror’s traditional Muslim clothing that juror was religiously
devout and therefore likely to be defense-oriented); 

, 18 P.3d at 122 (holding strike
constitutional because it was based on juror’s personal
beliefs rather than religious affiliation); Card v. United
States, 

, 594-95 (D.C. Ct. App. 2001) (finding
strike based upon inferred allegiance to Louis Farrakhan
related to a “genuine race-neutral concern regarding the
potential juror’s desire to hamstring any possible
conviction.”).
   The distinction drawn by the District Court between a
strike motivated by religious beliefs and one motivated by
religious affiliation is valid and proper. The District Court’s
finding that the government struck jurors Bates and
McBride out of concern that their heightened religiosity
would render them unable or unwilling to convict was not
erroneous.

               3.   Dual Motivation Analysis
  DeJesus argues that the District Court erred by failing to
apply the dual motivation analysis to his Batson claim.
Because DeJesus did not raise this issue below, we
consider this argument under the plain error standard of
review. United States v. Olano, 

, 732 (1993).
   In Gattis v. Snyder, we held that dual motivation analysis
is appropriate in addressing a Batson challenge when the
prosecutor      offers  both    discriminatory   and    non-
discriminatory explanations for the strike. 

,
                             18


234-35 (3d Cir. 2002). Here, the government offered two
reasons for striking Bates — his body language and
heightened religiosity — and two reasons for striking
McBride — his willingness to forgive and heightened
religiosity. As we explained in the previous two sections of
this opinion, we conclude that the District Court did not err
in finding each of the government’s reasons to be non-
discriminatory. Therefore, the District Court did not err in
failing to sua sponte conduct a dual motivation analysis.

                   B.   Sentencing Issue
   The United States Sentencing Guidelines require a four-
level adjustment when “the defendant used or possessed
any firearm or ammunition in connection with another
felony offense. . . .” U.S.S.G. § 2K2.1(b)(5). DeJesus does
not dispute the fact that he possessed a firearm or that his
theft of Gorge Rivera’s car constituted “another felony
offense.” DeJesus disputes only the District Court’s finding
that he possessed the firearm “in connection with” the car
theft.
   This Court has clarified the scope of the “in connection
with” element of U.S.S.G. § 2K2.1(b)(5). In United States v.
Loney, we concluded that “we should construe § 2K2.1(b)(5)
as covering a wide range of relationships between the
firearm possession and the other felony offense.” 

, 284 (3d Cir. 2000). We explained that the broad
construction of “in connection with” was necessary
because:
    [The] definitions suggest that the phrase “in connection
    with” expresses some relationship or association, one
    that can be satisfied in a number of ways such as a
    causal or logical relation or other type of relationship.
    We do not attempt to provide an exhaustive list of
    relationships that will resolve every case. As other
    courts have observed, “no simple judicial formula can
    adequately capture the precise contours of the ‘in
    connection with’ requirement, particularly in light of
    the myriad factual contexts in which the phrase might
    come into play . . . .”
                             

(quoting United States v. Wyatt, 

, 247 (7th Cir. 1996)); see also United States v.
Thompson, 

, 6 (1st Cir. 1994) (“[I]t is difficult to
sketch the outer boundary” of the relationship expressed by
the phrase.).
  The District Court found that DeJesus had a firearm in
his right jacket pocket when he was arrested 10 to 15
minutes after he stole Rivera’s car, and that “the unloaded
.380 semi-automatic, chrome with black handle, presents
an intimidating sight, whether loaded or unloaded.” (App. at
272). In addition, the District Court found that DeJesus
stole the car from a residential street where it was likely
that he would encounter someone. 

Finally, the
District Court found that DeJesus’ mindset at the time was
extremely adverse to being apprehended. 

Court also stated that the crime of car theft is one that is
logically connected to the possession of a firearm. 

Based on these observations, the District Court
inferred that DeJesus would have used the firearm for the
purpose of intimidating any person who “tried to intervene
in his car thievery and escape,” and thus that the
possession emboldened him and facilitated the theft. 

   DeJesus argues that the District Court’s conclusion that
his possession of a firearm facilitated the car theft or
emboldened him to commit the theft was not supported by
sufficient evidence in the record. Specifically, DeJesus
asserts that the weapon “was found on the defendant, but
it was not loaded and he never employed the firearm during
or in relation to the theft.” (DeJesus’ Opening Brief at 45).
Moreover, “there was no evidence indicating that [he] . . .
would have drawn his weapon if confronted during the
course of the theft. In fact, in the entire time the police
were pursuing the defendant, [he] . . . never once reached
for or drew his weapon.” 

the government only has to prove guideline
enhancements by a preponderance of the evidence. United
States v. Dorsey, 

, 332 (3d Cir.), cert. denied,

(1999). The District Court found that the
government met that burden in this case, and we will not
disturb that conclusion unless we find that it is clearly
                              20


erroneous. United States v. Pitt, 

, 764 (3d Cir.
1999).
   The District Court’s conclusion is not clearly erroneous.
The District Court’s findings that DeJesus possessed an
unloaded firearm when he was arrested; that the weapon
was an intimidating sight even when unloaded; that
DeJesus stole the car on a residential street where he might
have been approached; and that DeJesus’ mindset was
adverse to being apprehended have ample support in the
record and are unrefuted by DeJesus on appeal. DeJesus
only challenges the inferences drawn by the District Court
on the basis of these unrefuted facts. But factfinders
“routinely, and permissibly, draw inferences when they are
evaluating a witness’s credibility.” 

.
And here, the inferences drawn by the District Court were
quite reasonable. DeJesus was carrying an intimidating
firearm in his jacket pocket while stealing a car from a
residential neighborhood. The most natural inference is
that he was carrying the weapon in order to facilitate the
theft. While there are other possible inferences, we will not
second guess the perfectly reasonable one drawn by the
District Court.
  The District Court’s inference is consistent with
inferences drawn by this Court and others while
considering the applicability of U.S.S.G. § 2K2.1(b)(5). See
e.g. 

(holding that simultaneous
possession of semi-automatic pistol and 29 packets of
heroin satisfied the “in connection with” requirement);
United States v. Rhind, 

, 694-95 (11th Cir.
2002) (enhancement appropriate even though guns were
not loaded because availability and appearance of firearms
promoted the crime), cert. denied, ___ U.S. ___, 

(2003); United States v. Sturtevant, 

, 34 (1st
Cir. 1995) (per curiam) (holding that requirement satisfied
where defendant possessed a firearm during an assault but
never threatened the victim with the gun because weapon
provided an added sense of security and had a substantial
potential for use); United States v. Routon, 

, 819
(9th Cir. 1994) (holding that requirement satisfied when
“the firearm was possessed in a manner that permits an
inference that it facilitated or potentially facilitated — i.e.,
                             21


had some potential emboldening role in — a defendant’s
felonious conduct.”). Like the defendants in Loney, Rhind,
Sturtevant, and Routon, DeJesus’ possession of a firearm
served to embolden or facilitate the commission of another
felony offense despite the fact that he did not actually draw
the firearm.
   In sum, “the phrase ‘in connection with’ requires that
there be some relationship between the gun and the
felony.” 

. The evidence in this case
shows that there was a sufficient relationship between
DeJesus’ possession of a firearm and his theft of a car to
warrant the four-level adjustment under U.S.S.G.
§ 2K2.1(b)(5).

                      IV.   Conclusion
  For the aforementioned reasons, we affirm DeJesus’
conviction and sentence.
                              22


STAPLETON, Circuit Judge, dissenting:
  I concur with the Court’s disposition of DeJesus’s claim
charging that the government exercised racially-based
peremptory challenges. I further agree that the District
Court did not abuse its discretion in sentencing DeJesus.
However, I am unable at this point to conclude that the
prosecution’s peremptory challenges of jurors Bates and
McBride involved no violation of the Equal Protection
Clause.
   As the Court correctly points out, peremptory challenges
exist so that a litigating party may excuse a potential juror
it believes is less desirable than other potential jurors, even
though the party cannot meet the burden of having the
juror removed for cause. Peremptory challenges are
necessarily based on speculation that particular traits,
characteristics, conduct, or personal experiences of a
prospective juror bear a correlation to a bias or quality that
the party exercising the strike deems undesirable in a juror.
In short, the process enables attorneys to engage in
stereotyping when utilizing the peremptory challenges that
they have been allotted.
   The    Supreme      Court,     however,   has    identified
characteristics that may not, consistent with the Equal
Protection Clause, be used as a basis for peremptory
challenges. Race-based peremptory challenges were ruled
out in Batson v. Kentucky, 

(1986). Thereafter,
in J.E.B. v. Alabama, 

(1994), the Court
concluded that gender-based stereotypes may not be used
as a basis for a peremptory challenge. This is true even if
the purported bias or quality inferred in accordance with
the stereotype would, standing alone, be a permitted
consideration for exercising a peremptory challenge. Thus,
a litigant, like the plaintiff in J.E.B., may not infer solely
from the fact that a prospective juror is male that he will be
likely to side with a defendant in a paternity suit and then
base a peremptory challenge on that inference.
  As our Court recently noted in Rico v. Leftridge-Byrd, 

, 182 (3d Cir. 2003), “The J.E.B. majority explicitly
grounded its decision on its conclusion that the Equal
Protection Clause bars peremptory challenges based on
                                   23


gender and, it strongly suggested, on any classification
otherwise receiving ‘heightened scrutiny’ under the Clause.”1
Based on that strong suggestion, I would hold that the
Equal Protection Clause bars the use of stereotypes based
upon religion in exercising peremptory challenges. When
state action “establishes ‘a classification [that] . . . is drawn
upon inherently suspect distinctions such as race, religion,
or alienage’ . . . , it must meet the strict scrutiny standard.
. . .” Schumacher v. Nix, 

, 1266 (3d Cir. 1992)
(quoting from City of New Orleans v. Dukes, 

,
303 (1976)); DeHart v. Horn, 

, 61 (3d Cir. 2000)
(en banc) (citing Maldonado v. Houstoun, 

, 184
(3d Cir. 1998), for the proposition that a “classification that
draws upon suspect distinctions, such as religion, is
subject to strict scrutiny”) (internal quotations omitted).

1. The Court’s analysis is reflected in the following observations:
    Under     our    equal     protection  jurisprudence,    gender-based
    classifications require “an exceedingly persuasive justification” in
    order to survive constitutional scrutiny. Thus, the only question is
    whether discrimination on the basis of gender in jury selection
    substantially furthers the State’s legitimate interest in achieving a
    fair and impartial trial. In making this assessment, we do not weigh
    the value of peremptory challenges as an institution against our
    asserted commitment to eradicate invidious discrimination from the
    courtroom. Instead, we consider whether peremptory challenges
    based on gender stereotypes provide substantial aid to a litigant’s
    effort to secure a fair and impartial jury.

(citations and footnotes omitted). After
concluding that a litigant’s interest in using peremptory challenges
based on gender stereotype did not provide “an exceedingly persuasive
justification,” the Court explained what remained of peremptory
challenges:
      Our conclusion that litigants may not strike potential jurors solely
    on the basis of gender does not imply the elimination of all
    peremptory challenges. Neither does it conflict with a State’s
    legitimate interest in using such challenges in its effort to secure a
    fair and impartial jury. Parties still may remove jurors who they feel
    might be less acceptable than others on the panel; gender simply
    may not serve as a proxy for bias. Parties may also exercise their
    peremptory challenges to remove from the venire any group or class
    of individuals normally subject to “rational basis” review.

.
                                    24


  One may peremptorily strike a juror for being inarticulate
or uneducated. But one may not, I believe, assume that
because a prospective juror is of a particular race, gender,
or religion, he is inarticulate or uneducated, and then base
a peremptory strike on that assumption. Similarly, a
prosecutor may undoubtedly strike a juror for being
unwilling to sit in judgment of another human being.
However, a prosecutor may not, consistent with the Equal
Protection Clause, infer solely from a prospective juror’s
race, gender, or religion that he will be unwilling to sit in
judgment of another, and then offer that unwillingness as
a permissible basis for a peremptory challenge.
   This does not mean that a litigant may not peremptorily
strike a juror because of a belief that happens to have a
religious basis. But a litigant cannot use a juror’s religious
affiliation or practice as the sole basis for attributing such
a particular belief to the juror. Here, the voir dire transcript
reveals no indication from either McBride or Bates that they
would be reluctant to convict or pass judgment on another
human being. If they had exhibited such a reluctance, the
government clearly would have been able to use such a
belief, regardless of whether it had a religious basis, as the
reason behind a peremptory strike. However, both McBride
and Bates indicated precisely the opposite of any such
unwillingness: that they would follow the law and base a
verdict only on the evidence in the case.
  The record makes clear that the sole basis for the
government’s belief that such reluctance existed was the
fact that McBride and Bates were heavily involved in the
practice of their religious faith. What the government did
was to assume that individuals heavily involved in the
practice of their religious faith, as a class, are likely to be
reluctant to sit in judgment of others. This is precisely the
kind of stereotyping that I believe is foreclosed by the
teachings of J.E.B.2 The Court concludes, as did the District

2. As the Court concedes, the only “fair inference” to be drawn from the
record is that Bates and McBride were Christians, and it well may be
that their specific religious affiliation played a role in the prosecutor’s
decision. It is unnecessary to resolve that issue, however. Whether the
prosecutor’s conclusion about unwillingness to sit in judgment was
based on Bates’s and McBride’s involvement in the practice of religion or,
more particularly, on their involvement in their Christian faith, their
exclusions from jury service were based on a suspect religious
classification giving rise to heightened scrutiny.
                               25


Court, that even though striking a juror on account of his
religious affiliation may violate Equal Protection, striking
him because of his “heightened religious involvement rather
than a specific religious affiliation” does not. Slip Op. p. 2.
I cannot agree. A classification based on “heightened
religious involvement” is no less a classification based on
religion than is a classification based on religious affiliation.
The government has proffered no authority from Equal
Protection or Free Exercise jurisprudence suggesting the
contrary and I am aware of none. Once a prosecutor begins
discriminating against individuals because they engage in
religious activities (regardless of what religion they are or
the degree to which they engage in those activities), or
because they are non-religious (or engage in only a limited
number of religious activities), the prosecutor’s actions
must be subjected to heightened scrutiny.
  Because the prosecution discriminated against Bates and
McBride on account of their practice of their religion, I
would reverse the judgment of the District Court. At the
same time, I agree with the Court that neutral grounds for
striking McBride and Bates may have played a role in the
prosecutor’s decisions. McBride indicated that he had
learned to forgive his cousin’s killer, and the prosecution
asserted that Bates diverted his eyes from the prosecution
during voir dire. Therefore, I would remand this case to the
District Court for a mixed motive analysis consistent with
our decision in Gattis v. Snyder, 

, 234-35 (3d
Cir. 2002).

A True Copy:
        Teste:

                    Clerk of the United States Court of Appeals
                                for the Third Circuit