Batson Challenge Denied & Uncorroborated Testimony of Co-Conspirators Sufficient Evidence

United States v. Thompson, No. 12-31203 (Nov. 12, 2013) (Smith, Dennis, Higginson)

Thompson challenged the government’s decision to use five of its seven peremptory strikes against black prospective jurors.  The government justified its decision based on the prospective jurors’ demeanors and, for three of them, also on perceived sources of bias toward the government.  Thompson argued these reasons were pretextual because the prosecutor struck 71% of the black potential jurors.  He also argued that Snyder v. Louisiana, 552 U.S. 472 (2008) requires the district court to state its assessment of demeanor on the record.  The panel disagreed, though, and held that “Snyder does not require a district court to make record findings of a juror’s demeanor where the prosecutor justifies the strike based on demeanor alone.”  Further, the record made it clear that the district court found the prosecutor’s demeanor-based justification credible.  After considering the strikes of all five jurors, the panel affirmed the denial of Thompson’s Batson challenge.

The panel also affirmed Thompson’s conviction, finding the evidence was sufficient to show he was part of the conspiracy and used weapons in furtherance of it.  Thompson complained that the only evidence connecting him to the conspiracy was the testimony of co-conspirators.  The panel found, however, that Thompson failed to show such testimony was factually insubstantial or incredible.  See United States v. Medina, 161 F.3d 867, 872-73 (5th Cir. 1998) (“As long as it is not factually insubstantial or incredible, the uncorroborated testimony of a co-conspirator . . . may be constitutionally sufficient evidence to convict.” (internal quotation and citation omitted)).