Scope of the remand inquiry for the government to proffer nonracial justification for striking a minority juror is limited to the original reason offered during voir dire, new post hoc justifications being inadmissible. Miller-El v. Dretke, 545 U.S. 231 (2005), discussed and followed:
… Accordingly, Miller-El II instructs that when ruling on a Batson challenge, the trial court should consider only the reasons initially given to support the challenged strike, not additional reasons offered after the fact. Id. at 246-52; see also Holloway v. Horn, 355 F.3d 707, 725 (3d Cir. 2004) (noting that “where a prosecutor makes his explanation for a strike a matter of record, our review is focused solely upon the reasons given”); Turner v. Marshall, 121 F.3d 1248, 1253 (9th Cir. 1997) (giving no weight to reasons offered by the prosecution after Batson hearing because they were not part of the prosecutor’s explanation at the hearing).
Accepting new, unrelated reasons extending well beyond the prosecutor’s original justification for striking Watson amounts to clear error under the teaching of Miller-El II, and the government’s reliance on these additional reasons raises the specter of pretext. Our decision in Hendrix is not to the contrary; in that case, the “add on” race-neutral reasons were offered at the time of the initial Batson challenge, not after the fact. Hendrix, 509 F.3d at 367. That’s obviously not the case here. It’s not possible to parse the district court’s decision, separating the permissible from the impermissible reasons supporting the court’s credibility finding. Accordingly, we must vacate the judgments and remand for a new trial.
Worth keeping in mind: the sole original justification for the strike smacked of pretext, because there was “no material difference” on that ground between the struck minority and a retained white juror (slip op., p. 4).