Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 95-20282-Jon Phipps McCalla, District Judge.
Before: Keith, Batchelder, and Cole, Circuit Judges.
The opinion of the court was delivered by: R. Guy Cole, Jr., Circuit Judge.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206
Defendant-Appellant Angela Breasher McFerron ("McFerron") challenges her 18 U.S.C. § 1623 conviction for perjury on the basis of the district court's Disposition of the government's Batson challenges, raised in response to McFerron's peremptory challenges to five white males on the venire panel. For the reasons that follow, we reverse McFerron's conviction and remand for a new trial.
On September 6, 1995, McFerron's husband, Kevin McFerron was tried in federal court on charges of drug trafficking and firearms violations. During the investigation of that case, authorities learned that McFerron approached Stephanie Johnson, a witness scheduled to testify in Kevin's trial, and asked that Johnson give false exculpatory testimony. Subsequently, authorities tape-recorded a telephone conversation between McFerron and Johnson in which McFerron requested that Johnson give false testimony.
At Kevin's trial, McFerron testified. The government asked her if she had asked anyone to lie at Kevin's trial. McFerron responded negatively. Thereafter, a federal grand jury charged McFerron with one count of perjury in violation of 18 U.S.C. § 1623. McFerron went to trial and the jury was unable to reach a unanimous decision. The district court thereupon declared a mistrial.
Jury selection in McFerron's second trial began on October 9, 1996. McFerron, an African-American woman, exercised seven of her ten peremptory challenges on white males. The government objected under Batson *fn1 that McFerron was using her challenges in a discriminatory manner to systematically exclude white males from the jury. *fn2 The government specifically objected to McFerron's use of peremptory challenges against five of the white males. *fn3
The district court conducted a Batson hearing at which time it determined that the government established a prima facie case that McFerron was exercising her peremptory challenges in a purposefully discriminatory fashion. *fn4 McFerron was then required to set forth nondiscriminatory reasons for the challenges with respect to the venire members against whom the government brought Batson challenges.
Regarding the first prospective juror, McFerron stated that she
"just felt he would be ultra conservative and that his conservativeness rather than anything else would make him tend to lean more toward the government and have a tendency to associate himself more with the government and maybe not be as unbiased . . . [and] based on his position as a physician, a lot of people tend to believe physicians, that he might ...