Batson Step-Three Must Turn on the Prosecutor’s “Actual, Contemporary Reasons”: Trial Courts May Not Supply New Justifications by Sua Sponte Voir Dire (United States v. Grace)

Introduction

United States v. Grace arose from a New Orleans traffic stop that led to the seizure of approximately 441 grams of methamphetamine and, ultimately, the federal prosecution of Marshall Grace for (1) conspiracy to distribute and possess with intent to distribute at least 500 grams of methamphetamine under 21 U.S.C. § 846 and (2) possession with intent to distribute at least 50 grams under 21 U.S.C. §§ 841(a)(1) and (b)(1)(B).

On appeal, Grace pressed two principal issues:

• Sufficiency of the evidence supporting the conspiracy conviction and the 500-gram drug-quantity finding; and
• A Batson claim contending the Government’s peremptory strike of a Black venireperson (Edward Davis) was racially discriminatory under Batson v. Kentucky, 476 U.S. 79 (1986).

The Fifth Circuit affirmed. The panel also issued a pointed admonition: the district court “strayed” from controlling Batson procedure by conducting sua sponte questioning that effectively searched for an alternative race-neutral justification—yet the error did not change the outcome because Grace failed to carry his step-three burden to prove purposeful discrimination.

Summary of the Opinion

The court stressed that Batson analysis must focus on the prosecutor’s “actual, contemporary reasons articulated” for the strike and that a court should not develop or substitute new reasons on the prosecutor’s behalf. Nonetheless, applying the deferential standard of review and the defendant’s burden at step three, the panel concluded the record did not establish purposeful discrimination.

Analysis

1) Precedents Cited

a) Sufficiency and conspiracy proof

• United States v. Cabello, 33 F.4th 281 (5th Cir. 2022) and United States v. Brown, 727 F.3d 329 (5th Cir. 2013): framed the standard of review—de novo with a “heavy thumb” favoring the verdict—anchoring the panel’s refusal to reweigh credibility.
• United States v. Kelley, 140 F.3d 596 (5th Cir. 1998): supplied the canonical lens for viewing evidence and inferences in the light most favorable to the verdict.
• United States v. Suarez, 879 F.3d 626 (5th Cir. 2018) and United States v. Gallo, 927 F.2d 815 (5th Cir. 1991): provided the three conspiracy elements—agreement, knowledge, voluntary participation—used as the template for evaluating the trial proof.
• United States v. Preston, 659 F. App'x 169 (5th Cir. 2016) (quoting United States v. Thomas, 12 F.3d 1350 (5th Cir. 1994)): reinforced that no overt act is required, agreement may be tacit, and circumstantial evidence can establish the conspiracy.
• United States v. Grant, 683 F.3d 639 (5th Cir. 2012): supported inferences of agreement, knowledge, and participation from surrounding circumstances.
• United States v. Perez‑Solis, 709 F.3d 453 (5th Cir. 2013) (quoting United States v. Robles‑Pantoja, 887 F.2d 1250 (5th Cir. 1989)): underscored that presence/association plus other evidence can support a conspiracy inference.
• United States v. Thompson, 811 F.3d 717 (5th Cir. 2016) (citing United States v. Harris, 666 F.3d 905 (5th Cir. 2012)): addressed preservation of sufficiency claims through a Rule 29 motion.

b) Batson’s three steps, deference, and “actual reasons”

• Batson v. Kentucky, 476 U.S. 79 (1986): supplied the constitutional baseline—equal protection forbids strikes “solely on account of” race—and is the anchor for the entire dispute.
• Foster v. Chatman, 578 U.S. 488 (2016) and Wright v. Harris Cnty., 536 F.3d 436 (5th Cir. 2008): established clear-error review for Batson rulings.
• Heckman v. Gonzalez‑Caballero, 65 F.4th 222 (5th Cir. 2023): restated the “definite and firm conviction” formulation of clear-error review, amplifying appellate deference.
• Flowers v. Mississippi, 588 U.S. 284 (2019): emphasized both the history Batson was meant to end and the rule that even one discriminatory strike violates the Constitution; also restated step two and step three.
• Davis v. Ayala, 576 U.S. 257 (2015): described Batson’s “three-step process” and reiterated that the strike opponent bears the burden of persuasion as to racial motivation.
• Snyder v. Louisiana, 552 U.S. 472 (2008): cited for the mechanics of step one (prima facie showing), as framed through Foster.
• Purkett v. Elem, 514 U.S. 765 (1995): supplied the low bar at step two—race-neutral reasons need not be “persuasive, or even plausible”—thereby shifting the real contest to step three.
• Miller-El v. Dretke, 545 U.S. 231 (2005): provided two key ideas used in the opinion: (1) defendants may rely on “all relevant circumstances” to show discrimination and (2) prosecutors must “state [their] reasons as best [they] can and stand or fall on the plausibility” of those reasons.
• Felkner v. Jackson, 562 U.S. 594 (2011): supported “great deference” to trial court credibility determinations regarding counsel explanations.
• Chamberlin v. Fisher, 885 F.3d 832 (5th Cir. 2018) (en banc): was the Fifth Circuit’s key internal constraint invoked by the panel—Batson requires focus on “the actual, contemporary reasons articulated” by the prosecutor.
• Miller-El v. Cockrell, 537 U.S. 322 (2003): reinforced that the critical issue is whether the trial court finds the prosecutor’s explanations credible.
• Hernandez v. New York, 500 U.S. 352 (1991) and United States v. Brown, 553 F.3d 768 (5th Cir. 2008): supported the proposition that once the prosecutor provides a race-neutral reason and the court rules, the prima facie (step-one) issue becomes moot.
• United States v. Thompson, 735 F.3d 291 (5th Cir. 2013): reiterated that the defendant has the burden to prove purposeful discrimination at step three.

2) Legal Reasoning

a) Conspiracy and drug quantity

Applying Suarez’s elements and the sufficiency framework of Cabello/Kelley, the panel relied on a dense combination of direct and circumstantial proof: (i) Grace’s written admission of owning the 441 grams found in his trunk; (ii) his admission that for two years he purchased “eight ounces” monthly (226 grams); (iii) evidence he supplied Tardie and Lonie; and (iv) text messages— including a day-of-arrest request from Lonie—corroborating ongoing distribution activity.

On drug quantity, the panel treated the 441 grams seizure as a significant floor and then added Grace’s own admissions and testimony about regular supply to reach a rational finding beyond a reasonable doubt that the conspiracy involved at least 500 grams. The court’s reasoning is characteristic of Fifth Circuit conspiracy cases: quantity may be established by combining seized drugs with credible evidence of ongoing trafficking, viewed in the light most favorable to the verdict.

b) Batson: the court’s procedural critique, then its outcome analysis

The opinion’s Batson analysis proceeds in two distinct moves:

• Move 1 (error identification): The district court, dissatisfied with the Government’s initial explanation (Davis “had seven sons”), called Davis back and elicited additional facts (a son’s incarceration and uncertainty about fairness). The Fifth Circuit characterized this as the court “supplant[ing]” the prosecutor’s burden to “give a clear and reasonably specific explanation” (Miller-El v. Dretke) and as inconsistent with the mandated focus on the prosecutor’s stated reasons (Chamberlin v. Fisher).
• Move 2 (affirmance anyway): Despite the procedural misstep, the panel affirmed because Grace failed to meet his step-three burden (Davis v. Ayala; United States v. Thompson). The court highlighted record circumstances it viewed as inconsistent with purposeful discrimination: from five Black potential jurors, after two peremptory strikes, two Black jurors served and one Black juror was an alternate. On this record and deferential review (Foster v. Chatman; Heckman v. Gonzalez‑Caballero), the panel concluded it was not left with a “definite and firm conviction” of mistake.

Notably, the court framed its analysis around step three (pretext/purposeful discrimination) and, consistent with Hernandez v. New York, treated step one as moot after the Government offered a race-neutral reason and the district court ruled.

3) Impact

Procedural discipline in Batson hearings: Although the judgment was affirmed, the opinion reads as a cautionary directive to district courts: Batson’s legitimacy depends on testing the prosecutor’s explanation, not improving it. The panel’s reliance on Chamberlin v. Fisher and Miller-El v. Dretke signals that Fifth Circuit panels may be increasingly attentive to trial-court “reason-building” that risks insulating strikes from meaningful step-three scrutiny.

Practical litigation consequence: Defense counsel can use United States v. Grace to argue that a trial judge’s sua sponte elicitation of new facts to justify a strike is procedural error. Prosecutors, conversely, are on notice that they should state complete, concrete, contemporaneous reasons when challenged—because the appellate focus is on what the prosecutor said, not what later “could have been” said.

Limits of the admonition: The affirmance also underscores that demonstrating procedural irregularity alone may not carry the day if the appellant cannot persuade the reviewing court of purposeful discrimination under clear-error review. In other words, the opinion strengthens the rule of “no judicial supplementation,” but it also reinforces the heavy step-three burden and deference to trial outcomes.

Complex Concepts Simplified

Batson’s three-step framework (in plain terms)

1. Step one (raise suspicion): The defendant points to facts suggesting a strike may be race-based. (In practice, once the prosecutor gives a race-neutral reason and the judge rules, step one usually drops out as “moot” under Hernandez v. New York.)
2. Step two (a race-neutral reason is offered): The prosecutor must give some reason that does not explicitly depend on race. Under Purkett v. Elem, it need not be sensible—just not facially racial.
3. Step three (the real question): The judge decides whether the stated reason is the real reason or a pretext for discrimination (Flowers v. Mississippi). The defendant bears the burden of persuasion (Davis v. Ayala).

“Peremptory strike”

A peremptory strike lets a party remove a prospective juror without proving “cause” (e.g., bias). Batson limits this discretion: peremptories cannot be used for racial discrimination.

“Clear error” review

On appeal, the Fifth Circuit does not decide Batson questions from scratch. Under Foster v. Chatman and Heckman v. Gonzalez‑Caballero, it reverses only if it is firmly convinced the trial court made a mistake—especially difficult where credibility judgments are involved.

Drug conspiracy under 21 U.S.C. § 846

The Government need not prove a formal written agreement or an overt act; the jury can infer a tacit agreement from conduct, communications, and repeated coordinated drug activity (United States v. Preston; United States v. Grant).

Conclusion

United States v. Grace affirms a methamphetamine conspiracy conviction on robust admission-and-corroboration evidence and, more significantly for future jury-selection disputes, clarifies that Batson adjudication must remain tethered to the prosecutor’s “actual, contemporary reasons articulated” for a peremptory strike. The Fifth Circuit criticized the trial court’s sua sponte effort to elicit new facts that could justify the strike—warning that judges must evaluate, not rehabilitate, the proponent’s stated rationale.

Yet the case also demonstrates the practical reality of Batson litigation on appeal: even when procedural missteps occur, reversal is unlikely absent a persuasive showing of purposeful discrimination under deferential clear-error review.