SANDY TOWNSLEY, PETITIONER V. UNITED STATES OF AMERICA No. 88-1938 In The Supreme Court Of The United States October Term, 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eighth Circuit Brief For The United States TABLE OF CONTENTS Questions Presented Opinions below Jurisdiction Statement Argument Conclusion OPINIONS BELOW The en banc opinion of the court of appeals (Pet. App. A40-A52) is reported at 856 F.2d 1189. The panel opinion of the court of appeals (Pet. App. A1-A35) is reported at 843 F.2d 1070. JURISDICTION The judgment of the court of appeals (Pet. App. A53) was entered on September 16, 1988. A petition for rehearing was denied on March 29, 1989 (Pet. App. A55-A56). The petition for a writ of certiorari was filed on May 30, 1989 (a Tuesday following a Monday holiday). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether, under the rule announced in Batson v. Kentucky, 476 U.S. 79 (1986), a white defendant has standing to challenge the prosecutor's use of peremptory challenges to remove black jurors from the petit jury panel. 2. Whether the government's use of peremptory challenges to remove black jurors from the panel deprived petitioner of her Sixth Amendment right to a jury drawn from a fair cross-section of the community. 3. Whether there was a sufficient federal nexus to support a conviction for conspiracy to commit vote fraud in violation of 18 U.S.C. 241. 4. Whether the court of appeals properly found that tape-recorded telephone conversations between petitioner and an attorney were admissible in evidence, notwithstanding petitioner's claim of the attorney-client privilege, because the conversations were part of a conspiracy to obstruct justice. STATEMENT After a jury trial in the United States District Court for the Eastern District of Missouri, petitioner and two co-defendants were convicted of conspiracy to deprive the citizens of St. Louis of their constitutional rights through vote fraud, in violation of 18 U.S.C. 241 (Count 1); conspiracy to commit mail fraud, in violation of 18 U.S.C. 371 and 1341 (Count 3); and conspiracy to obstruct a grand jury investigation, in violation of 18 U.S.C. 371 and 1503 (Count 4). Petitioner was sentenced to concurrent three-year terms of imprisonment on Counts 1 and 3, to be followed by three years' probation on Count 4, and to a $2,000 fine. A panel of the court of appeals reversed petitioner's conviction for conspiracy to commit mail fraud and remanded the remaining counts to the district court for further proceedings. On rehearing en banc, the court of appeals affirmed petitioner's convictions on Counts 1 and 4. /1/ 1. The facts are summarized in the panel opinion of the court of appeals. In 1978, co-defendant Sorkis Webbe, Jr., was the Democratic Committeeman for the Seventh Ward in St. Louis, Missouri, and had strong ties with the Seventh Ward Regular Democratic Organization (Seventh Ward Organization). That year, Edward Bushmeyer successfully challenged the candidate supported by the Seventh Ward Organization for the office of state representative in the Democratic primary election. Determined to recapture the office, Webbe enlisted Robert Brandhorst to run against Bushmeyer in the 1980 Democratic primary election. Pet. App. A3. Based on experience gained in the 1978 primary election, Webbe knew that the absentee vote would be important to the outcome of the 1980 primary. Under Missouri law, absentee voters were to punch out perforated entries on computer cards to indicate their choice of candidates, seal the cards in transmittal envelopes, have the envelopes notarized, and mail the envelopes to state election officials. Only state election officials were entitled to open the envelopes. In view of the notarization requirement, the Seventh Ward Organization arranged for a number of its workers to become notaries. In addition, Webbe recruited Eugene (Buck) Jones to coordinate the absentee voter efforts on behalf of the Seventh Ward Organization. Pet. App. A4. During a meeting called by Webbe, Jones instructed the notaries in the technique of partially sealing the ballot transmittal envelopes so that the envelopes could be opened at the campaign office and later resealed without detection. /2/ Thereafter, Jones obtained from election officials a daily list of absentee ballots sent to voters and then arranged through precinct captains of the Seventh Ward Organization to have notaries sent to those residences. The notaries would collect the ballots, partially seal them, and bring them back to Jones. Jones would then place them in a locked drawer in his desk, to which both Webbe and petitioner had access. Pet. App. A4-A5. During the primary election campaign, Webbe, petitioner, and other Seventh Ward Organization members were observed in Webbe's office punching holes in absentee ballots that had been opened. In petitioner's presence, one of the workers was expressly told to "double-punch" in the Bushmeyer/Brandhorst race if Bushmeyer had received the vote. /3/ The ballots were then resealed and returned to Jones' desk drawer for eventual transmittal to state election officials. Throughout the election campaign, petitioner was able to respond with a specific, running vote count when asked about the absentee voter operation. Ultimately, Brandhorst defeated Bushmeyer in the primary election based on the strength of a lopsided majority in absentee votes. Pet. App. A6-A7. 2. On March 9, 1983, federal agents began serving grand jury subpoenas on members of the Seventh Ward Organization. At the time, federal agents were coincidentally conducting electronic surveillance at the office of Webbe and his father, Sorkis Webbe, Sr. (an attorney), in the Mayfair Hotel, pursuant to a court order issued in an unrelated investigation. After the subpoenas were served, Webbe quickly surmised that the government was investigating vote fraud allegations in the 1980 primary election and, in particular, fraud involving absentee ballots. Webbe, his father, petitioner, and others thereafter engaged in a series of conversations that were intercepted as a result of the electronic surveillance at the Mayfair Hotel office. Those conversations implicated them in the vote fraud case and formed the basis of the obstruction of justice charge. Pet. App. A7-A8. In particular, Webbe and Webbe, Sr., held a series of meetings with Seventh Ward Organization workers, including petitioner, who had been subpoenaed to testify before the grand jury. Those meetings could "only be characterized as coaching (the witnesses) to present a unified, fabricated front." Pet. App. A8. For her part, petitioner agreed that she would falsely deny that she had discussed the investigation with Webbe and would falsely testify that the absentee ballot envelopes were always sealed and that she had never received any instructions to do anything improper. GX 18, at 58-59, 76-77; GX 19, at 19-20, 77. Petitioner also sought assurances from Webbe that the 1980 absentee ballots had been destroyed by state election officials so that no direct evidence of ballot tampering was available. GX 19, at 67, 14-17. 3. A divided panel of the court of appeals provisionally affirmed petitioner's convictions on Counts 1 and 4. The panel held, inter alia, that the government properly had obtained and executed the electronic surveillance order for the Webbes' office (Pet. App. A9-A15); that the intercepted oral communications of Webbe, Sr., and various prospective subpoenaed witnesses did not violate the attorney-client privilege since it was "abundantly clear from * * * the conversations * * * that Webbe, Sr., was vigorously participating in the obstruction of the grand jury's investigation" (id. at A28-A29); and that there was a sufficient federal nexus for the Section 241 vote tampering charge since the primary election at issue involved races for both federal and state offices (Pet. App. A16-A18). The panel majority held, however, that the case should be remanded to the district court for an evidentiary hearing as to whether the prosecution's use of 10 of its 12 peremptory challenges to remove all black potential jurors from the petit jury panel violated the rule announced in Batson v. Kentucky, 476 U.S. 79 (1986). Although noting that it was "problematic" whether petitioner, who is white, could assert a Batson claim, the panel majority stated that co-defendant Gandy, who is black, clearly was entitled to raise a Batson claim at the joint trial. /4/ From this, the panel majority concluded that petitioner should also be entitled to benefit from Batson since, assuming that Gandy established a Batson violation on remand, "it (would) necessarily follow() that * * * (petitioner) w(as) treated differently because (she) was tried together with a black defendant" (Pet. App. A24). Accordingly, the panel majority affirmed petitioner's convictions on Counts 1 and 4, subject to the outcome of the Batson hearing on remand. Pet. App. A21-A24. Judge Bowman dissented. In his view, even if Gandy prevailed on his Batson claim on remand, it would not change the fact that petitioner suffered no prejudice as a result of the racial composition of the petit jury selected for trial. Pet. App. A33. "Because there is nothing in the Batson opinion even to suggest that a white defendant may assert its principles derivatively through a black codefendant" (id. at A34), Judge Bowman believed that petitioner was not entitled to challenge the prosecutor's exercise of his peremptory challenges. Id. at A32-A35. 4. On rehearing en banc, the court held that petitioner was not entitled to assert the Batson claim raised by her black co-defendant and, accordingly, affirmed her convictions on Counts 1 and 4. Pet. App. A40-A52. The court stated that "(t)here is simply no factual basis for the argument that the prosecution's use of its peremptory strikes to eliminate black jurors may have violated the right() of th(is) white defendant() under the Equal Protection Clause." Id. at A42. Barring such a demonstration, the en banc majority concluded that the "clear and straightforward" rule prescribed in Batson was limited to defendants belonging to a cognizable racial group whose members had been removed from the jury panel. Ibid. In addition, although the argument had not been raised before the panel, the en banc court held that the Sixth Amendment's fair cross-section requirement had no application to the selection of a particular petit jury. Id. at A42-A44. The dissenters would have permitted petitioner to join in her black co-defendant's Batson claim, lest she be "treated differently because (she was) tried together with a black defendant." Pet. App. A47. The dissenters also would have held that the Sixth Amendment protects against a prosecutor's use of peremptory challenge to remove black potential jurors, and that petitioner was entitled to assert such a claim here. Id. A50-A52. Although recognizing that there was no constitutional requirement that the actual jury selected must mirror the racial composition of the community, the dissenters believed that a Sixth Amendment violation occurs when a prosecutor's exercise of peremptory challenges compromises "the possibility that the actual petit jury selected represents a fair cross section of the community." Id. at A50-A51. ARGUMENT 1. Petitioner initially contends (Pet. 10-17) that she should have been accorded standing, like her black co-defendant, to mount a Batson challenge to the prosecutor's use of peremptory strikes to remove black potential jurors. Like the other courts of appeals that have faced the question whether a defendant may make a Batson challenge to peremptory strikes of potential jurors who belong to other racial groups, the court in this case rejected petitioner's claim on the ground that it is contrary to the holding in Batson. In Batson, the Court overruled that portion of Swain v. Alabama, 380 U.S. 202 (1965), regarding the evidentiary standard applicable to claims by black defendants that the exclusion of blacks from service on petit juries violated their equal protection rights. Under Swain, a defendant could not prevail without demonstrating that the prosecutor had "consistently," "systematically," and "in case after case, whatever the circumstances" exercised his peremptory challenges to prevent qualified blacks from serving on petit juries. 380 U.S. at 223-224. The Court in Batson rejected that standard, holding that a black defendant can establish an equal protection violation based on the prosecutor's use of peremptory challenges to remove black jurors from the petit jury in his case. 476 U.S. at 96. The Court in Batson articulated the following evidentiary framework (476 U.S. at 96): To establish such a case, the defendant first must show that he is a member of a cognizable racial group, * * * and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be nodispute, that peremptory challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate." * * * Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. Batson thus unequivocally requires that the challenged jurors be "members of the defendant's race." /5/ In subsequent decisions, the Court has consistently described Batson as containing such a requirement. See Griffith v. Kentucky, 479 U.S. 314, 316 (1987) ("In Batson, * * * this Court ruled that a defendant * * * could establish a prima facie case of racial discrimination violative of the Fourteenth Amendment, based on the prosecution's use of peremptory challenges to strike members of the defendant's race from the jury venire.") (emphasis added); Allen v. Hardy, 478 U.S. 255, 259 (1986) ("Our holding (in Batson) ensures that States do not discriminate against citizens who are summoned to sit in judgment against a member of their own race.") (emphasis added); Teague v. Lane, 109 S. Ct. 1060, 1066 (1989) ("The Court (in Batson) held that a defendant can establish a prima facie case by showing that he is a 'member of a cognizable racial group,' (and) that the prosecutor exercised 'peremptory challenges to remove from the venire members of the defedant's race.'") (emphasis added); cf. id. at 1092 (Brennan, J., dissenting) (in contrast to a possible Sixth Amendment challenge to peremptory strikes, "the Equal Protection Clause might not provide a basis for relief unless the defendant himself belonged to the group whose members were improperly excluded"). In line with Batson's holding, every court of appeals that has considered the issue has held that criminal defendants who do not belong to the racial or ethnic group that has been the target of the prosecutor's peremptory challenges "cannot complain about the government's peremptory challenges." United States v. Angiulo, 847 F.2d 956, 984 (1st Cir.) ("(T)o make a prima facie case of purposeful discrimination under Batson, the defendants must be members of the ethnic or racial group that they contend was discriminated against by the government."), cert. denied, 109 S. Ct. 314 (1988); United States v. Rodriquez-Cardenas, 866 F.2d 390, 392 (11th Cir. 1989) (rejecting Batson claim of a Hispanic defendant who challenged the prosecutor's strikes of black potential jurors); United States v. Vaccaro, 816 F.2d 443, 457 (9th Cir.) (rejecting Batson claim of defendants who were not black but who sought to challenge strikes of black jurors), cert. denied, 108 S. Ct. 262 (1987). /6/ The equal protection principles of Batson were designed to protect against the use of peremptory challenges based on the prosecutor's "assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant." 476 U.S. at 89. But the rationale of denying the prosecutor the right to "challenge jurors of the defendant's race on the assumption * * * that they would be partial to the defendant because of their shared race," id. at 97, has no application to petitioner's case. /7/ The court of appeals thus correctly held that petitioner was not victimized by the practice condemned in Batson. /8/ 2. Petitioner next contends (Pet. 17-18) that, even if she is not entitled to relief under Batson's equal protection analysis, the prosecutor's use of his peremptory challenges to remove all blacks from the jury deprived her of her Sixth Amendment right to a jury drawn from a fair cross-section of the community. Relying on this Court's decisions in Taylor v. Louisiana, 419 U.S. 522, 538 (1975); Batson, 476 U.S. at 85-86 n.6, and Lockhart v. McCree, 476 U.S. 162 (1986), the court of appeals rejected petitioner's Sixth Amendment claim. Pet. App. A42-44. /9/ As petitioner notes (Pet. 18), this Court has granted certiorari in a case that raises the questions whether the Sixth Amendment's fair cross-section requirement applies to the prosecutor's use of peremptory challenges during jury selection and, if so, whether a non-minority defendant has standing to challenge the removal of minority jurors from the jury. See Holland v. Illinois, cert. granted, No. 88-5050 (Feb. 27, 1989). Because the Court in Holland may resolve the Sixth Amendment issue raised asserted by petitioner, we believe that the Court should hold the instant petition pending the disposition of Holland. If the Court decides in Holland that the Sixth Amendment does not apply to the prosecutor's exercise of peremptory challenges, or that nonminority defendants lack standing to contest the prosecutor's striking of minority jurors, the Court should deny certiorari here. If, on the other hand, the Court decides both these questions in the defendant's favor in Holland, the Court should grant petition, vacate the judgment, and remand the case to the court of appeals for reconsideration in light of the Court's opinion. 3. Petitioner next contends (Pet. 18-21) that because the indictment did not allege a federal nexus for the vote fraud scheme charged in Count 1, her conviction of vote fraud under 18 U.S.C. 241 must be reversed. This claim was properly rejected by the court below. Petitioner's argument hinges on the assertion (Pet. 19-20) that "the purpose of the (vote fraud) conspiracy (charged in the indictment) was to destroy only ballots cast for state and local candidates," and that Section 241 is not triggered by such a scheme. As the court of appeals recognized, however, the indictment was not so limited. Pet. App. A16-A17. Count 1 of the indictment alleged that the 1980 Democratic primary election was "held * * * for the purpose . . . of selecting * * * candidates * * * for the offices of United States Senator, United States House of Representatives, (and various state and local public offices)." The indictment further alleged that petitioner and her co-conspirators "conspire(d) . . . to intimidate and oppress citizens of . . . the 7th Ward of the City of St. Louis, (with respect to their right) to have ballots cast in elections where Federal candidates are voted upon counted in a fair and impartial manner free from tampering and illegal destruction," by means of "destroy(ing) absentee ballots * * * and thereby * * * prevent(ing) the tabulation of said ballots in that election." Ibid. (emphasis added). Thus, by its plain terms, Count 1 alleged a conspiracy to affect both state and federal races. The indictment therefore essentially tracked the language that was held to be sufficient by this Court in Anderson v. United States, 417 U.S. 211 (1974). /10/ Anderson is equally dispositive of petitioner's contention (Pet. 20) that Count 1 is deficient for failing to allege that petitioner had a specific intent to "impede" or "influence" votes cast in a federal election. As the Court in Anderson made clear, no such intent is required under Section 241 (417 U.S. at 226-227): The specific intent required under Section 241 is not the intent to change the outcome of a federal election, but rather the intent to have false votes cast and thereby to injure the right of all voters in a federal election to express their choice of a candidate and to have their expressions of choice given full value and effect, without being diluted or distorted by the casting of fraudulent ballots * * *. Every voter in a federal primary election, whether he votes for a candidate with little chance of winning or for one with little chance of losing, has a right under the Constitution to have his vote fairly counted, without its being distorted by fraudulently cast votes. And, whatever their motive, those who conspire to cast false votes in an election for federal office conspire to injure that right within the meaning of Section 241. In Anderson the scheme involved the defendants' use of a voting machine fraudulently to cast an entire slate of votes, including votes for federal candidates, for all offices on the ballot. This Court concluded that the jury could properly find that the voting for all candidates reflected "the conspirators' underlying assumption that false votes would have to be cast for entire slates of candidates in order to have their fraud go undetected." 417 U.S. at 225. /11/ As the court below properly recognized, "(i)f the Anderson conspirators had cast votes only for the local election they intended to influence, the absence of votes for other candidates on the ballot could raise suspicion" (Pet. App. A17). Thus, the court continued, "in the present case, the jury could infer that in instances destruction of the entire absentee ballot was necessary to avert suspicion that may have been caused by double-punching alone" (ibid.). /12/ In sum, the indictment alleged and the evidence showed that one of the purposes of the conspiracy was the destruction of absentee ballots that included votes for federal as well as state offices. Accordingly, a sufficient federal nexus was established to support petitioner's conviction. See United States v. Olinger, 759 F.2d 1293, 1297-1298 (7th Cir.), cert. denied, 474 U.S. 839 (1985). /13/ 4. Finally, petitioner asserts (Pet. 21-27) that she consulted Sorkis Webbe, Sr., for legal advice and that the tapes of her conversations with Webbe, Sr., therefore should have been excluded from evidence under the attorney-client privilege. The court of appeals found it "abundantly clear" that the conversations were subject to the crime-fraud exception to the attorney-client privilege and were therefore properly introduced at trial. Pet. App. A28-A29. Petitioner's fact-bound quarrel with that holding, which raises no disagreement over legal principles, does not warrant review. In any event, the court of appeals' holding was correct. Without doubt, "(a)dvice obtained from an attorney by one who is already a wrongdoer and seeks legal counsel in aid of a legitimate defense is privileged." 2 J. Weinstein, Weinstein's Evidence Paragraph 503(d)(1)(01), at 503-68 (1980). See United States v. Zolin, No. 88-40 (June 21, 1989), slip op. 7. But this Court long ago recognized that the attorney-client privilege does not protect communications with an attorney that assist in an ongoing or future crime or fraud. See Clark v. United States, 289 U.S. 1, 15 (1933). Just last Term, the Court recalled that "(i)t is the purpose of the crime-fraud exception to the attorney-client privilege to assure that the 'seal of secrecy' between lawyer and client does not extend to communications 'made for the purpose of getting advice for the commission of a fraud' or crime." Zolin, slip op. 8 (citation omitted). A claim of privilege is especially inappropriate where "the attorneys essentially served as 'front men' in a scheme to subvert the judicial process itself." In re Sealed Case (D.C. Cir. 1985), 754 F.2d 395, 402. /14/ Once the government makes a prima facie showing that the attorney was consulted in relation to future criminal or fraudulent activity, the protection of the privilege is lost. Ibid. Cf. Zolin, slip op. 8-9 n.7 (leaving open precisely what quantity of proof is required under the prima facie standard); S. Stone & R. Liebman, Testimonial Privileges Section 1.65, at 106-107 (1983 & Supp. 1988). A prima facie case of on-going crime or fraud may be proved by direct or circumstantial evidence. Clark, 289 U.S. at 14. See also In re Sealed Case ( ), 676 F.2d at 814-815 (D.C. Cir. 1982). Moreover, a court may use the assertedly privileged communications in determining whether the crime-fraud exception applies; it need not rely on wholly independent evidence. Zolin, slip op. 10-15. Those principles are fully applicable here. The court of appeals found ample evidence from the electronically monitored conversations "that Webbe, Sr., was vigorously participating in the obstruction of the grand jury's investigation" by "actively coach(ing)" subpoenaed witnesses -- including petitioner -- to "present() a uniform, knowingly untruthful, story." Pet. App. A28-A29. As the recorded conversations disclose (see Gov't C.A. Br. 17-18, 27-28, 34, 76-77), petitioner -- who was debriefed by both Webbes -- was coached to testify falsely in order to protect co-defendant Webbe and the Seventh Ward Organization from any criminal exposure as a result of the vote fraud operation. Thereafter, petitioner testified before the grand jury in a manner entirely consistent with those instructions. Moreover, the Webbes' coaching of petitioner was consistent with the pattern of coaching extended to other prospective witnesses; indeed, Webbe, Sr., told petitioner what other witnesses would say, thereby assuring her that she could testify falsely without fear of contradiction. In such circumstances, the attorney-client privilege did not protect petitioner's conversations with attorney Webbe, Sr. CONCLUSION The petition for a writ of certiorari should be denied, except as to the second question presented in the petition. As to the second question, the petition should be held for disposition in light of this Court's decision in Holland v. Illinois, No. 88-5050. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S. G. DENNIS, JR. Assistant Attorney General ROBERT J. ERICKSON Attorney AUGUST 1989 /1/ In light of the reversal of petitioner's conviction on Count 3, the court of appeals remanded the case for resentencing on the remaining counts. Pet. App. A20, A44. /2/ The ballots included in addition to the contested race for the state legislature, a contested race for the office of United States Senator and an uncontested race for the United States House of Representatives. GX 60. /3/ The court of appeals explained that "(d)ouble-punching would result in no vote being tallied for that particular race, thus nullifying a vote that had been cast for Bushmeyer." Pet. App. A6 n.6. /4/ Petitioner was convicted in a trial with co-defendants Sorkis Webbe, Jr., and Pat Gandy. /5/ Other statements in the Court's opinion in Batson also confirm this requirement. Thus, the Court described the question presented as involving the "evidentiary burden placed on a criminal defendant who claims that he has been denied equal protection through the State's use of peremptory challenges to exclude members of his race from the petit jury." 476 U.S. at 82 (emphasis added). The Court also noted, in surveying the equal protection principles applicable to this problem, that "(m)ore than a century ago, the Court decided that the State denies a black defendant equal protection of the laws when it puts him on trial before a jury from which members of his race have been purposefully excluded." Id. at 85. And the Court reaffirmed that "(t)he Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race, or on the false assumption that members of his race as a group are not qualified to serve as jurors." Id. at 86 (emphasis added). /6/ Despite this authority, petitioner relies (Pet. 12-13) on this Court's decisions in Peterss v. Kiff, 407 U.S. 493 (1972); Taylor v. Louisiana, 419 U.S. 522 (1975), and Duren v. Missouri, 439 U.S. 357 (1979), for the proposition that all defendants have standing to challenge the exclusion of women and minorities from jury service. But none of these cases rest on interpretations of the Equal Protection Clause, as did Batson. In Peters v. Kiff, the Court could not agree on a rationale, and the separate opinions do not rely, as does petitioner, on the Equal Protection Clause. See 407 U.S. at 496-501 (opinion of Marshall, J., joined by Douglas and Steward, JJ.) (allowing white defendant to challenge exclusion of blacks from jury service on due process grounds); id. at 505-507 (opinion of White, J., concurring, joined by Brennan and Powell, JJ.) (allowing such a challenge to "implement the strong statutory policy" of 18 U.S.C. 243). Moreover, as petitioner elsewhere seems to recognize (Pet. 17-18), Taylor and Duren were resolved on Sixth Amendment principles and not on the basis of equal protection. At all events, Batson makes clear that its rule may be invoked only by defendants who share a common race with the stricken potential jurors. The other decisions of this Court relied upon by petitioner -- all of which were decided before Batson -- do not alter the standing rule set out in Batson. Likewise, the state cases relied on by petitioner do not find standing under the Equal Protection Clause for a white defendant to advance a Batson claim based on peremptory strikes of black potential jurors. See State v. Superior Court, 760 P.2d 541, 544 (Ariz. 1988) (finding standing under the Sixth Amendment), petition for cert. pending, No. 88-1037 (filed Dec. 17, 1988); Seubert v. State, 749 S.W.2d 585, 588 (Tex. Ct. App. 1988) (finding standing on a due process theory and under the Sixth Amendment). /7/ We emphasize that we in no way endorse or condone the racially discriminatory use of peremptory challenges in any case. We maintain here only that petitioner is not entitled, under Batson, to a reversal of her conviction when her equal protection rights were not violated. /8/ Petitioner also asks (Pet. 14-15) this Court to review the narrower question whether a white defendant who would not have standing to raise a Batson claim if tried alone nevertheless acquires such standing if tried with a black co-defendant. That claim lacks merit and does not warrant review. As the dissent from the panel opinion noted (Pet. App. A34), it would be a "mysterious alchemy" if a defendant who personally lacks standing to challenge peremptory strikes if tried alone would acquire standing simply because she was tried with a black co-defendant. In light of the fact that equal protection rights are personal rights that are "guaranteed to the individual," see City of Richmond v. J. A. Croson Co., 109 S. Ct. 706, 721 (1989) (plurality opinion) (quoting Shelley v. Kraemer, 334 U.S. 1, 22 (1948)), there is no basis for finding aa violation of petitioner's rights simply because her black co-defendants had standing to challenge a prosecutorial practice. /9/ The courts of appeals have generally rejected Sixth Amendment claims with respect to the government's exercise of peremptory challenges in selecting petit juries. See, e.g., Harris v. Pulley, 852 F.2d 1546, 1563 (9th Cir. 1988); Nevius v. Sumner, 852 F.2d 463, 466 (9th Cir. 1988), cert. denied, 109 S. Ct. 1972 (1989); United States v. Olson, 846 F.2d 1103, 1117 n.16 (7th Cir. 1988, cert. denied, 109 S. Ct. 131 (1988)); Teague v. Lane, 820 F.2d 832, 837 (7th Cir. 1987) (en banc), aff'd on other grounds, 109 S. Ct. 1060 (1989); Prejean v. Blackburn, 743 F.2d 1091, 1103-1104 (5th Cir. 1984); United States v. Thompson, 730 F.2d 82, 85 (8th Cir.), cert. denied, 469 U.S. 1024 (1984); Willis v. Zant, 720 F.2d 1212, 1219 n.14 (11th Cir. 1983), cert. denied, 467 U.S. 1256 (1984); United States v. Whitfield, 715 F.2d 145, 146-147 (4th Cir. 1983); Weathersby v. Morris, 708 F.2d 1493, 1497 (9th Cir. 1983), cert. denied, 464 U.S. 1046 (1984). But see McCray v. Abrams, 750 F.2d 1113 (2d Cir. 1984), vacated and remanded, 478 U.S. 1001 (1986); Roman v. Abrams, 822 F.2d 214, 224-227 (2d Cir. 1987); Booker v. Jabe, 775 F.2d 762 (6th Cir. 1985), vacated, 478 U.S. 1001, reinstated on remand, 801 F.2d 871 (6th Cir. 1986), cert. denied, 479 U.S. 1046 (1987). /10/ In Anderson, the Section 241 conspiracy count charged that "on May 12, 1970, a primary election was held in Logan County, West Virginia, for the purpose of nominating candidates for the offices of United States Senator, Representative to Congress and various state and county public offices." It then charged that the defendants conspired "to injure and oppress the qualified voters of Mount Gay precinct in the free exercise and enjoyment of their 'right to vote for candidates for the aforesaid offices and to have such vote cast, counted, recorded and certified at their full value and given full effect * * *.'" The indictment further specified that it was "a part of the conspiracy 'to cause fraudulent and fictitious vote to be cast in said precinct * * *.'" 417 U.S. at 227 n.13. /11/ In like manner, the federal vote-buying statute, 42 U.S.C. 1973i, does not require that the illicit payment be made with respect to a contest for federal office; it requires only that the payment be made in connection with an election, as here, in which federal candidates are listed on the ballot. See, e.g., United States v. Saenz, 747 F.2d 930, 943 (5th Cir. 1984) (collecting cases), cert. denied, 473 U.S. 906 (1985). /12/ Petitioner insists that the evidence did not support a finding of a federal nexus because "none of the means and methods of effecting the (vote fraud) conspiracy related to votes cast for federal candidates." Pet. 20. Petitioner simply ignores the finding of the court of appeals that there was evidence that "quite often" ballots intercepted as part of the conspiracy were not mailed to election officials. Pet. App. A5-A6. As to those ballots, the votes cast for federal candidates were obviously destroyed. /13/ Because of the joint federal-state nature of the 1980 Democratic primary election and the effect of the conspirators' conduct on the federal as well as the state contests, there is, as the court of appeals correctly stated (Pet. App. A18 n.10), no occasion to consider the issue unresolved in Anderson, whether Section 241 reaches vote fraud conducted in purely local elections. We note, however, that two courts of appeals that have addressed this question have concluded that Section 241 reaches frauds in purely local elections. See United States v. Olinger, 759 F.2d at 1301-1305; United States v. Anderson, 481 F.2d 685, 698-701 (4th Cir. 1983), aff'd on other grounds, 417 U.S. 211 (1974). Petitioner does not allege that there is any conflict in the circuits on this issue. Thus, even if petitioner were correct in arguing that the instant vote fraud scheme was devoid of a federal nexus, there would be no reason for the Court to consider this issue, as to which there is no split of authority among the courts of appeals. /14/ See also United States v. Laurins, 857 F.2d 529, 540-541 (9th Cir. 1988) (concealment of evidence); United States v. Ballard, 779 F.2d 287, 290-293 (5th Cir.) (concealment of interest in property from bankruptcy court), cert. denied, 475 U.S. 1109 (1986); United States v. Sutton, 732 F.2d 1483, 1494 (10th Cir.) (destruction of evidence), cert. denied, 469 U.S. 1157 (1985), In re Grand Jury Subpoena Duces Tecum (Marc Rich), 731 F.2d 1032, 1039 (2d Cir. 1984) (fraudulent conveyance to obstruct government's ability to collect fines); United States v. Dyer, 722 F.2d 174, 177 (5th Cir. 1983) (manufactured evidence); In re Berkley & Co., 629 F.2d 548, 553 (8th Cir. 1980) (documents created "to implement and to avoid detection of various illegal and fraudulent schemes"); United States v. Gordon-Nikkar, 518 F.2d 972, 975 (5th Cir. 1975) (communications designed to further client's effort "to commit perjury so as to hide the criminal activity of (himself) and others").