In the

United States Court of Appeals
              For the Seventh Circuit

No. 11-3471

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                                v.

R OHAN G. H ERON,
                                            Defendant-Appellant.


           Appeal from the United States District Court
               for the Southern District of Illinois.
        No. 06-CR-30068-WDS—William D. Stiehl, Judge.



       A RGUED A PRIL 3, 2013—D ECIDED JULY 15, 2013




 Before P OSNER, W OOD , and H AMILTON, Circuit Judges.
  W OOD , Circuit Judge. Rohan Heron was caught riding
shotgun in a tractor-trailer truck filled with over 1,000
pounds of marijuana and 28 kilograms of cocaine,
while he was en route from Phoenix, Arizona, to East
St. Louis, Illinois. Charged with possession with intent
to distribute, Heron denied any involvement with the
drugs, claiming that he had agreed to come on the trip
as a favor to a friend and that he believed it would
2                                             No. 11-3471

involve the transport of legitimate goods only. This
argument failed to persuade the jury; Heron was con-
victed and sentenced to 120 months’ imprisonment.
  On appeal, Heron identifies two errors in the trial
proceedings that, in his view, warrant reversal. First, he
asserts that the government struck a juror based on
her religion in violation of Batson v. Kentucky. Second,
he argues that the district court improperly admitted
hearsay evidence that identified him as the “co-driver” of
the drug-filled truck. Because we find Heron’s Batson
claim forfeited and conclude that there was no error in
the admission of the “co-driver” statement, we affirm
Heron’s conviction.


                            I
                            A
  At the time the events in this case took place, Heron
was working as a commercial truck driver for the CSX
Trucking Company and living in Springfield, Massachu-
setts. Heron’s longtime friend, Gigiman Hamilton, was
also working as a commercial truck driver. In addition
to transporting legitimate loads, Hamilton made
money transporting drugs from the West Coast for a
trafficker known as “T-Mex.” In 2006, during a period
in which Heron was temporarily out of work
while his truck underwent maintenance and inspection,
Hamilton invited Heron to accompany him on one
of his cross-country drug-trafficking trips. The plan
was for Hamilton and Heron to deliver a legitimate load
No. 11-3471                                             3

of furniture to San Diego, California, stop off in Phoenix
to deliver some of Hamilton’s daughter’s furniture to
her new home there, and then pick up a shipment of
marijuana that they would deliver on their way back to
the East Coast. At trial, Hamilton testified that he
informed Heron that their itinerary included trans-
porting marijuana, that Heron agreed to participate,
and that they planned to split the anticipated $40,000
fee for delivering the marijuana 50-50. Hamilton ex-
plained that having Heron accompany him and share
the driving was advantageous, because it allowed him
to move more quickly, thereby decreasing the proba-
bility that he would get caught.
  Hamilton and Heron drove to San Diego and dropped
off the load of furniture as planned. They then drove
to Phoenix and dropped off the furniture for
Hamilton’s daughter. On the way to San Diego and
Phoenix, Hamilton and Heron took turns sleeping in
the truck’s sleeper berth. In Phoenix, Hamilton and
Heron met with T-Mex to discuss transporting a load
of marijuana. Hamilton told T-Mex that he needed to
find a legitimate load first, and so he and Heron traveled
to Las Vegas, Nevada, where they picked up a load of
voting machines. They then returned to Phoenix, where
T-Mex and some men identified only as “Mexicans”
loaded three boxes of marijuana into the truck’s trailer.
Heron was present for this, though he did not
personally load any of the boxes into the truck. Hamilton
testified that Heron began expressing reservations
about transporting the marijuana as they drove back to
Phoenix from Las Vegas, but that Heron did not attempt
4                                                No. 11-3471

to leave the truck or find some other way of returning
to the East Coast.
  Once the boxes of marijuana were in the trailer,
Hamilton left Heron at a truck stop with the trailer and
took the truck’s cab to a different location. There, he
and the “Mexicans” loaded the cab’s sleeper berth with
trash bags filled with marijuana and cocaine. As pictures
produced at trial confirmed, the sleeper berth was over-
flowing with trash bags full of drugs, to the point that
Hamilton had to obtain extra straps to keep the ship-
ment in place. Hamilton testified that when he returned
to the truck stop, Heron commented on the size of the
load stuffed into the sleeper berth.
  Hamilton and Heron proceeded to drive nonstop
from Phoenix to Caseyville, Illinois. Hamilton testified
that he and Heron took turns driving. They also took
turns sleeping in the passenger seat of the cab, because
the sleeper berth was full. Both Lieutenant Detective
Mark Rigel, a Missouri police officer assigned to
the Drug Enforcement Administration (DEA) and a
certified expert in trucking industry standards, and
Robert Lombard, Heron’s boss at CSX Trucking, noted
at trial that this was a violation of federal safety regula-
tions and industry standards, which require drivers
to spend a large portion of their non-driving time
resting in the sleeper berth. See 49 C.F.R. § 395.1(g) (2013).
Rigel and Lombard further testified that cargo is not
supposed to be stored in the sleeper berth.
 Hamilton and Heron reached Caseyville in the early
morning hours of May 10. There, they rendezvoused
No. 11-3471                                            5

with T-Mex and Jason Wyatt, a middleman who was
brokering the drug sale between T-Mex and a buyer in
East St. Louis, in a parking lot behind a Cracker Barrel.
After speaking briefly with T-Mex, Hamilton and Heron
unhitched the trailer and then set off from the parking
lot in the cab, following T-Mex and Wyatt’s vehicle.
  Unbeknownst to Hamilton or Heron (or to T-Mex or
Wyatt), the DEA had been tracking the truck’s progress
since well before it entered Illinois. The buyer in East
St. Louis who was set to receive the marijuana was
actually a confidential informant (CI) working with the
DEA. The CI informed the DEA that T-Mex and Wyatt,
riding in a tractor-trailer stocked with drugs, were
headed to Illinois. By the time Hamilton and Heron
arrived in Caseyville, DEA surveillance was in place.
After observing the meeting between Hamilton, Heron,
T-Mex, and Wyatt at the Cracker Barrel, DEA Special
Agent Mike Rehg arranged for a local Caseyville police
officer, Greg Hosp, to pull the truck over.
  Hosp stopped the truck after it made a turn without
signaling. Hamilton was driving at that point, and
Hosp asked him to step out of the vehicle. Hamilton
showed Hosp his driver’s license and the truck’s bill
of lading, which indicated that the truck had left Las
Vegas on Monday, May 8. Hamilton stated to Hosp that
he left Las Vegas on Monday morning with a load of
voting machines and was headed to New York. When
Hosp asked where Hamilton was heading when he
was pulled over, Hamilton stated that he was going to
see a girl. Hamilton hesitated when asked the girl’s
6                                              No. 11-3471

name, and did not respond when asked where they
were meeting. Hosp then asked if there was anyone
accompanying Hamilton, and Hamilton responded that
he was with his “co-driver.”
  Hosp then approached Heron and asked where he
was coming from. Heron replied that “they” (he and
Hamilton) were coming from Las Vegas, and that they
had left Monday morning and driven straight through.
Hosp testified that this struck him as odd considering
that it meant Hamilton and Heron had been driving
for well over 30 hours, which seemed longer than it
ought to have taken to drive from Las Vegas to
Caseyville. (The journey should, in fact, take approxi-
mately 23 hours.) When asked where they were headed
when they were pulled over, Heron stated that he
and Hamilton were on their way to get food. Again,
this struck Hosp as strange, given that the truck was
driving away from an area with several food establish-
ments toward an area with no food establishments.
  Hosp returned to Hamilton and asked whether he
could search the interior of the truck. Hamilton refused,
but he did consent to a canine search of the truck’s exte-
rior. A K-9 unit was called in, and the dog alerted to the
odor of drugs. This led to a full search of the truck’s cab
and the discovery of 1,100 pounds of marijuana in the
trailer and the sleeper berth, as well as 28 kilograms of
cocaine in the sleeper berth.
No. 11-3471                                             7

                            B
  Heron wound up charged with one count of posses-
sion with intent to distribute 100 kilograms or more of
a mixture or substance containing marijuana and one
count of possession with intent to distribute five
kilograms or more of a mixture or substance con-
taining cocaine, both in violation of 21 U.S.C. § 841(a).
Heron originally was convicted by a jury on both counts
in June 2007. This court reversed his conviction on
appeal, however, after concluding that the district
court abused its discretion in denying Heron a
requested continuance. United States v. Heron, 

, 883 (7th Cir. 2009).
  The government elected to retry Heron on the same
charges, and in July 2011, he was again convicted
following a jury trial. The district court sentenced him
to concurrent prison sentences of 108 months on the
marijuana charge and 120 months on the cocaine charge.
  On appeal, Heron raises two issues. First, he con-
tends that during jury selection the government used
one of its peremptory strikes to remove a juror, Juror #9,
on the basis of her religious commitment or “religiosity.”
Heron asks us to hold that such a religion-based
strike violates the Equal Protection Clause. Second, he
asserts that the district court abused its discretion in
admitting Hosp’s testimony that Hamilton identified
Heron as his “co-driver” during the traffic stop that
led to their arrest. In Heron’s view, this statement was
improperly admitted under the rule that excludes a
co-conspirator’s statements from the definition of
8                                                 No. 11-3471

hearsay, see FED. R. E VID. 801(d)(2), because it was not
made in furtherance of a conspiracy between him and
Hamilton. We address each argument in turn.


                              II
   In Batson v. Kentucky, 

(1986), the Supreme
Court held that the government’s discriminatory use
of peremptory strikes to exclude African-Americans
from a jury violates the Equal Protection Clause, and it
established a framework for challenging such strikes. In
J.E.B. v. Alabama ex rel. T.B., 

(1994), the Court
extended Batson to gender-based strikes. Although
various observers, including members of the Court
itself, have argued that the reasoning in Batson and J.E.B.
ought to apply in any case involving a peremptory
strike “based on a classification that is accorded
heightened scrutiny under the Equal Protection Clause,”
Davis v. Minnesota, 

, 1115 (1994) (mem.)
(Thomas, J., dissenting from denial of certiorari), the
Court has yet to apply Batson outside the confines of race-
and gender-based strikes.
  Heron asks us to extend Batson and J.E.B. to peremptory
strikes based on “religion,” which Heron construes
broadly to include strikes based on a juror’s level of
religious devotion, or “religiosity,” as well as strikes
based on religious affiliation. This argument faces
several obstacles, the first of which is that Heron
forfeited it by failing to raise it in the district court. (The
government briefly contends that Heron waived any
No. 11-3471                                               9

religion-based Batson claim. We disagree. Waiver is “the
intentional relinquishment or abandonment of a known
right,” United States v. Olano, 

, 733 (1993)
(internal quotation marks omitted), and the record here
contains no indication that Heron intentionally decided
to forgo a religion-related Batson challenge.) This is
how the Batson challenge to the government’s peremptory
strike of Juror #9 was argued at voir dire:
   [Defense Counsel]: With regard to #9, I just want to
   put on the record that Ms. --- is an African American
   and there are few in the panel. She is from East St.
   Louis. In terms of her things that she told us about
   herself, she has relatives who are in the military
   service. I would like to object to her removal as a
   Batson challenge.
   [Government]: Your Honor, the concerns of Govern-
   ment were on her sheet that was listed where
   she stated that she had a child that was a social worker,
   as well as a mother who apparently runs a ministry.
   [Court]: A what?
   [Government]: A ministry. Concerns of Govern-
   ment with her being sympathetic to the Defendant.
   [Defense Counsel]: Well, that that [sic] just means
   they believe in God and they want to help people.
   But the fact that her daughter’s occupation doesn’t
   have anything to do with her mother being involved
   in ministry. You don’t know if she’s [a] pastor or just
   goes to church in some capacity. There is absolutely
   nothing here with regard to this lady that would
   justify her removal from this this [sic] jury panel.
10                                             No. 11-3471

The exchange then turned to a discussion of how many
other African-Americans were on the panel, after which
the district court stated that it would overrule the
objection and remove Juror #9.
   Heron urges us to interpret this exchange, and par-
ticularly defense counsel’s statement that “[t]here is
absolutely nothing here with regard to this lady that
would justify her removal,” as an objection to the gov-
ernment’s attempt to strike Juror #9 on religious
grounds—a clumsily phrased objection, perhaps, but
one sufficient to place the district court on notice of the
substance of the claim. This stretches the transcript too
far. As we read the exchange, defense counsel’s
response to the government’s race-neutral (but reli-
gion-based) explanation was a pretext argument: in
effect, counsel was saying that having a daughter who
is a social worker and a mother who is “in ministry”
are poor, implausible reasons for a strike, and thus the
government’s proffered race-neutral explanation is
pretextual. Accord United States v. Willis, 

,
766-67 (7th Cir. 2008) (once the party requesting the
strike puts forth a facially nondiscriminatory reason for
the strike, the district court must determine whether
that explanation is deserving of belief or, rather, is
pretext for discrimination). Although defense counsel’s
response mentioned religion, nothing else about this ex-
change indicates to us that he was raising an innova-
tive, distinct Batson challenge based on religion, as
opposed or in addition to the challenge based on race.
  Furthermore, after defense counsel stated that he did
not believe that Juror #9’s family members’ occupations
No. 11-3471                                            11

provided a basis for striking her, the parties and the
court continued to discuss the proposed strike in racial
terms, turning to the remainder of the panel to see
how many African-American jurors were left. Religion
did not come up during this subsequent discussion.
Finally, had defense counsel actually managed to raise
a religion-based Batson claim, we would expect either
the government or the district court to have acknowl-
edged it. Neither did.
  “To preserve an issue for appellate review, a party
must make a proper objection at trial that alerts the
court and opposing party to the specific grounds for
the objection.” United States v. Wynn, 

, 1442
(7th Cir. 1988). Doing so allows the district court to
correct its errors in a timely fashion and develops a
record that enables meaningful appellate review. See

; United States v. Davis, 

, 1406-07 (7th Cir. 1994). Defense counsel’s recita-
tion of a few words that might, under some cir-
cumstances, signal a Batson challenge is not enough
to preserve the issue for appeal. We therefore find
that Heron has forfeited his religion-based Batson chal-
lenge. Accord United States v. Brown, 

, 662
(2d Cir. 2003) (defendant failed to preserve reli-
gion-based Batson challenge when objection was not
explicitly framed in religious terms); United States v.
Stafford, 

, 1114 (7th Cir. 1998) (same).
  Because the claim was forfeited below, our review is
for plain error only. 

. Under
this standard, Heron cannot prevail. Although one of
12                                              No. 11-3471

our sister circuits and a handful of state courts have
extended Batson to strikes based on a juror’s religious
affiliation, Heron is asking us to recognize a Batson chal-
lenge based on a juror’s “religiosity,” and no court has yet
applied Batson in that context. See 

(Batson prohibits strikes based on affiliation); State v.
Purcell, 

, 120-21 (Ariz. Ct. App. 2001) (same);
People v. Martin, 

, 151 (Cal. Ct. App.
1998) (same); State v. Hodge, 

, 552-53
(Conn. 1999) (same). But see United States v. DeJesus, 

, 510 (3d Cir. 2003) (declining to decide whether
a strike based on religious affiliation would violate
Batson); State v. Davis, 

, 772 (Minn. 1993)
(declining to apply Batson to religious affiliation);
Casarez v. State, 

, 495 (Tex. Crim. App.
1994) (en banc) (same). (Indeed, the Third Circuit has
expressly rejected such a claim. 

.) In the absence of a single authority supporting
recognition of Heron’s proposed Batson claim, we
cannot conclude that allowing the government to
strike Juror #9 based on her (or her mother’s) degree
of religious devotion was plain error. Indeed, if the law
is unsettled or unexplored, we would want to see
more than one lone opinion before we found plain error.
See United States v. Hosseini, 

, 551-52 (7th
Cir. 2012).
  The idea of evaluating the depth of a prospective
juror’s religious feelings is troubling enough to make
us especially reluctant to consider it without a proper
exploration in the district court. This is a difficult area,
fraught with risks whatever way we turn. Although
No. 11-3471                                             13

one might think there would be value in a rule that cate-
gorically endorsed all religion-related strikes so long
as they were not overtly based on a juror’s religious
affiliation, upon closer examination we think that such
a rule would come with its own problems. The affilia-
tion/practices distinction may often be illusory, since
a person’s religious affiliation may be hard to dis-
tinguish from religious practices and level of devotion.
How would we parse, for instance, whether the peremp-
tory strike of a woman wearing a burqa is based
on the fact that she is Muslim or on the fact that she is
demonstrably devout? We are not confident that we
could coherently distinguish between affiliation and
“religiosity” in such a case, and the warning against
excessive entanglement into religion found in such cases
as Lemon v. Kurtzman, 

, 613 (1971), and Walz
v. Tax Comm’n of New York, 

, 674-75 (1970),
has special force here. Even if the line between affilia-
tion and religiosity were clear, it is unclear why
someone’s religious affiliation ought to be entitled to
greater constitutional protection than that person’s reli-
gious exercise. These are thorny questions which, given
Heron’s forfeiture, we are content to save for another
day. We also note that Heron in particular faces other
serious obstacles: the strike in his case appears to have
been based on the religiosity of Juror #9’s mother; and the
religiosity explanation was paired with the “social
worker daughter” explanation, which would not have
posed a Batson problem if raised on its own.
14                                              No. 11-3471

                             III
  Heron also challenges the district court’s decision
to admit Officer Hosp’s testimony that Hamilton
identified Heron as his “co-driver” during the traffic
stop that led to the discovery of the drugs. He contends
that the statement was not “in furtherance of a conspir-
acy” and was therefore not admissible under the
co-conspirator exclusion to the hearsay rule. F ED. R. E VID.
801(d)(2)(E). We review the district court’s ruling for
an abuse of discretion; any factual findings made in
support of the ruling are reviewed for clear error. United
States v. Rea, 

, 604 (7th Cir. 2010).
  A statement is admissible under Rule 801(d)(2)(E) if
the government proves by a preponderance of the
evidence that “(1) a conspiracy existed; (2) the defendant
and the declarant were members of the conspiracy; and
(3) the statement was made during the course and in
furtherance of the conspiracy.” United States v. Cruz-Rea,

, 937 (7th Cir. 2010). Statements made in
furtherance of a conspiracy may include “comments
designed to assist in recruiting potential members, to
inform other members about the progress of the con-
spiracy, to control damage to or detection of the conspir-
acy, to hide the criminal objectives of the conspiracy,
or to instill confidence and prevent the desertion of
other members.” United States v. Johnson, 

,
533 (7th Cir. 2000). A statement may be admissible
under Rule 801(d)(2)(E) even if it is not “ ‘exclusively, or
even primarily, made to further the conspiracy.’ ” 

(quoting United States v. Singleton, 

, 1107 (7th Cir. 1997)).
No. 11-3471                                             15

  The district court found that Hamilton’s statement
to Hosp was made in an effort to prevent Hosp from
discovering the illegal drugs in the truck and to hide
the criminal objectives of the trip. This strikes us as
entirely reasonable, and certainly not clear error. Hamil-
ton’s responses to Hosp’s questions during the traffic
stop could easily be seen as an attempt to portray the
trip in a legitimate light and to prevent detection of
the vast amount of marijuana and cocaine being trans-
ported in the truck. Hamilton’s statement that he was
accompanied by his “co-driver” was part of that effort.
Hosp was certain to notice that there was another
person in the truck at some point during the stop (even
if he had not when he asked Hamilton whether there
was anyone else in the truck), and Hamilton needed
to offer some explanation of what Heron was doing
there. Moreover, identifying Heron as his co-driver rein-
forced the legitimate appearance of the trip: having
two drivers meant that there was no need to stop for
rest, which could explain why Hamilton and Heron
were driving in the middle of the night. This was, at a
minimum, a reasonable view of the evidence, and the
district court did not abuse its discretion in adopting it.
  Heron insists that the statement could not have
been meant to conceal the conspiracy, because, in his
view, it actually tended to reveal a conspiracy between
him and Hamilton. Not so. The statement revealed
only that both Heron and Hamilton were driving the
truck, not that the two men were part of a conspiracy to
transport narcotics. In context, the statement was part of
an effort to convince Hosp that Hamilton and Heron
16                                           No. 11-3471

were legitimate truckers transporting a legitimate cargo;
it did not tend to reveal a conspiracy between them.
  In any event, even if we were to conclude that the
“co-driver” statement was erroneously admitted, we
would find that the error was harmless. The sole signifi-
cance of the statement was that it indicated that Heron
had been driving the truck, as opposed to merely ac-
companying Hamilton as a passenger. While Hosp’s
statement certainly tended to bolster the government’s
argument that Heron had been driving, there was addi-
tional evidence of Heron’s driving. Heron himself
stated to Hosp that “they” (meaning he and Hamilton)
had driven straight through from Las Vegas. And Hamil-
ton testified at trial that he and Heron had taken
turns driving.
  It is hard to imagine that any jury would have bought
Heron’s unwitting-passenger defense, given the evidence
presented at trial: Heron was arrested in the cab of a
tractor-trailer whose sleeper berth was packed to the
gills with marijuana and cocaine. The quantity of drugs
made it impossible to crawl into the sleeper berth.
Multiple witnesses testified that it was against trucking
industry rules to put cargo in the sleeper berth and
also that industry rules required that drivers traveling
straight through with a co-driver use the sleeper berth
for resting. Heron was indisputably an experienced
truck driver, and it can be assumed that he was
aware of these rules and would have understood the
irregularity of traveling with a sleeper berth packed
with cargo. Heron also was observed interacting with
No. 11-3471                                          17

T-Mex and Wyatt, the seller and the broker in the
drug transaction. The jury had ample basis for con-
cluding that Heron played more than a passive role in
transporting the drugs found in the truck and was not
an innocent passenger who simply happened to be
along for the ride.
 Finding no error in the Batson and evidentiary rulings,
we A FFIRM the judgment of the district court.




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