FREDERICK R. FORTE, PETITIONER V. GOVERNMENT OF THE VIRGIN ISLANDS

   No. 90-5615

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Third Circuit

   Brief For The United States In Opposition

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. A1-A10) is
unreported, but the judgment is noted at 904 F.2d 694 (table).  Prior
opinions of the court of appeals are reported at 865 F.2d 59 and 806
F.2d 73.

                             JURISDICTION

   The judgment of the court of appeals was entered on May 4, 1990.
The petition for a writ of certiorari was filed on July 5, 1990.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the failure of petitioner's trial counsel to object to the
government's use of its peremptory challenges to strike white
prospective jurors denied petitioner effective assistance of counsel.

                               STATEMENT

   Following a jury trial in the United States District Court for the
Virgin Islands, petitioner was convicted on two counts of aggravated
rape, in violation of 14 V.I. Code 1700(c);  one count of unlawful
sexual conduct in the first degree, in violation of 14 V.I. Code
1700(c);  and one count of possession of a dangerous weapon during the
commission of those crimes, in violation of 14 V.I. Code 2251(a)(2).
He was sentenced to 12 years' imprisonment.

   1. Petitioner is white.  The jury venire for petitioner's trial
included six white prospective jurors.  During jury selection, the
prosecutor exercised five peremptory challenges to strike white
venirepersons.  Petitioner's counsel did not object to the
government's use of its peremptory challenges.  No white persons
served on the jury that ultimately convicted petitioner.  Pet. App.
A2;  C.A. App. 415.

   2. After petitioner's trial, this Court ruled in Batson v.
Kentucky, 476 U.S. 79 (1986), that prosecutors may not use peremptory
challenges to exclude prospective jurors "solely on account of their
race." Id. at 89.  On appeal, petitioner contended that the government
had violated Batson by using its peremptory challenges to strike white
persons from the jury, and that his trial attorney's failure to object
to the government's exercise of its peremtory challenges denied him
effective assistance of counsel.  C.A. App. 429.

   The court of appeals affirmed.  C.A. App. 428-433.  The court held
that petitioner had waived his Batson claim by failing to make a
contemporaneous objection during jury selection.  C.A. App. 430-431.
The court also rejected petitioner's contention that the government's
use of its peremptory challenges constituted plain error cognizable on
appeal in the absence of a timely objection.  The court noted that the
district court had conducted a "careful voir dire examination" and
that there was "no evidence that the factfinding process was tainted"
by jury bias.  C.A. App. 431-432.  Finally, the court held that
petitioner could raise his contention regarding the ineffectiveness of
his trial attorney in a collateral proceeding under 28 U.S.C. 2255.
C.A. App. 432-433.

   3. Petitioner renewed his ineffectiveness claim in a motion under
28 U.S.C. 2255.  The district court denied petitioner's motion without
a hearing.  Petitioner appealed, and the court of appeals reversed,
concluding that the district court abused its discretion in summarily
denying the motion.  C.A. App. 421-427.  The court noted that
petitioner had alleged in his motion for post-conviction relief that
before his trial he had retained a Philadelphia attorney to consult
with his Virgin Islands trial attorney;  that the consulting attorney
had advised the trial attorney that Batson was pending in the Supreme
Court, and had instructed her to object if the prosecutor used
peremptory challenges to strike white prospective jurors;  and that
petitioner had also instructed his trial attorney to object to the
exclusion of white prospective jurors on the basis of Batson.  C.A.
App. 423.  Assuming these allegations to be true, the court held,
petitioner's trial counsel was ineffective in failing to honor
petitioner's request that she object to the prosecutor's use of
peremptory challenges.  C.A. App. 424-425.  The court also found that
"had the objection been made (petitioner) would have been successful
on his direct appeal in having the matter remanded for a determination
of whether there had been a Batson violation." C.A. App. 426.
Accordingly, the court concluded that the attorney's failure to object
to the government's exercise of its peremptory challenges prejudiced
petitioner's direct appeal.  C.A. App. 426-427.

   The court noted, however, that even if the district court
determined on remand that petitioner's trial attorney was ineffective,
the district court was not necessarily required to vacate petitioner's
conviction and sentence.  Instead, the remedy for any deprivation of
petitioner's right to effective assistance of counsel would be "to
give (petitioner) what he should have gotten in the first place, an
explanation from the prosecutor as to why she used her peremptory
challenges and a ruling by the court on whether (petitioner) has
established that there was purposeful discrimination." C.A. App. 427.
If the district court concluded that no Batson violation had occurred,
there would be no reason to overturn petitioner's conviction and
sentence.  C.A. App. 427.

   4. On remand, the district court held an evidentiary hearing at
which the prosecutor explained her reasons for sriking the white
venirepersons.  /1/ Two of the prospective jurors, Edver Bryan and
Patrick Cuyler, were struck because they were members of the boating
community, as was petitioner, and the prosecutor was aware that there
was "very strong sentiment in favor of (petitioner) throughout the
boating community." /2/ C.A. App. 141-144.  The prosecutor struck a
third juror, Robert Woods, because she knew him from previous juries
and believed that he was "rigid" and "like a drill sergeant." The
prosecutor explained that she was concerned that Woods would identify
with the "military bearing" of petitioner's father, a retired military
officer who had testified at petitioner's bail hearing and whose
"presence was keenly felt throughout all the pretrial proceedings."
C.A. App. 139-140.  Another prospective juror, Cornell Jaray, was
struck because he had indicated that he did not want to serve as a
juror on criminal cases, and the prosecutor did not want an unwilling
juror to sit on petitioner's jury.  C.A. App. 142-143.  Finally, the
prosecutor explained that she struck prospective alternate juror Julia
Post, who had previously been employed as a bank teller, because Post
had "bent over backwards" to assist her when she opened an account at
the bank, and she felt that Post was annoyed with her when she later
closed the account.  C.A. App. 145-146.

   Following the evidentiary hearing, the district court again denied
petitioner's motion for post-conviction relief.  C.A. App. 412-420.
Based on the prosecutor's "very credible" testimony at the hearing,
the court found that the prosecutor had provided a valid, race-neutral
explanation for each of the peremptory strikes.  C.A. App. 415-418.
/3/ The court concluded that it need not decide whether petitioner's
trial counsel had been informed of the pending Batson case and
instructed to object to the prosecutor's use of peremptory challenges,
because even assuming that petitioner's trial counsel failed to make a
requested Batson objection, no Batson violation had occurred.  C.A.
App. 413, 420.

   5. Petitioner again appealed, and the court of appeals affirmed.
Pet. App. A1-A10.  As an initial matter, the court rejected
petitioner's contention that the district court erred in not deciding
whether his trial attorney had failed to honor a request that she
object to the prosecutor's exercise of peremptory challenges.  Noting
that "(a) district court rejecting a claim of ineffective assistance
of counsel 'need not determine whether counsel's performance was
deficient before examining the prejudice suffered by the defendant as
a result of the alleged deficiencies,'" the court of appeals concluded
that it was "well within the district court's discretion" to dispose
of the ineffectiveness inquiry by first considering whether petitioner
was prejudiced by his counsel's failure to object.  Pet. App. A6,
quoting Strickland v. Washington, 466 U.S. 668, 697 (1984).

   The court of appeals also rejected petitioner's claim that the
district court erred in finding that the prosecutor's exercise of
peremptory challenges was not racially motivated.  The court noted
that the prosecutor had provided reasons for each of the peremtory
challenges and that the district court had accepted these explanations
as legitimate and credible.  Pet. App. A7-A9.  Stating that "(t)he
district court's findings, based on its evaluation of credibility of
the witnesses before it, are accorded 'great deference,'" the court of
appeals upheld the district court's rejection of petitioner's Batson
claim.  Pet. App. A9, quoting Batson, 476 U.S. at 1724 n.21.  /4/

                               ARGUMENT

   Petitioner renews his contention (Pet. 1-2, 14-27) that his trial
counsel's failure to object to the government's use of its peremtory
challenges to strike white prospective jurors denied him effective
assistance of counsel.  That factbound claim does not warrant this
Court's review.

   In order to establish ineffective assistance of counsel, petitioner
must show that his attorney's performance "fell below an objective
standard of reasonableness" and that he was prejudiced by the
attorney's deficient performance.  Strickland v. Washington, 446 U.S.
668, 687-688 (1984).  Here, the court of appeals concluded that if
petitioner's Batson claim would have been rejected in any case, any
error by petitioner's trial counsel in failing to make a Batson
objection could not have prejudiced petitioner.

   Petitioner does not dispute that conclusion.  Rather, petitioner's
principal claim (Pet. 20-27) is that the district court should have
found that the prosecutor's explanations for her use of peremptory
challenges to strike white prospective jurors did not adequately rebut
the prima facie showing of purposeful discrimination.  As this Court
explained in Batson, the district court's determination as to whether
a defendant has established purposeful discrimination is a "'finding
of fact' entitled to appropriate deference by a reviewing court." 476
U.S. at 98 & n.21, quoting Anderson v. Bessemer City, 470 U.S. 564,
573 (1985).  That factual question has been resolved against
petitioner by two courts below, and it warrants no further review
here.  See United States v. Doe, 465 U.S. 605, 614 (1984);  United
States v. Reliable Transfer Co., 421 U.S. 397, 401 n.2 (1975);
Berenyi v. Immigration Director, 385 U.S. 630, 635 (1967).

   In any event, petitioner's claim lacks merit.  Petitioner's
challenge to the adequacy of the government's reasons presupposes that
the court of appeals should assess the credibility of the government's
explanations, rather than simply determine that they are race-neutral
and have some plausible relation to the particular case to be tried.
Batson, 476 U.S. at 89.  The court of appeals is not well situated to
second-guess the trial court's credibility determination.  Id. at 98
n.21 ("Since the trial judge's findings in the context under
consideration here largely will turn on evaluation of credibility, a
reviewing court ordinarily should give those findings great
deference.").  /5/ In this case, the government's explanations for its
peremptory strikes were clearly race-neutral, as Batson requires, and
were credited by the district court.  Batson does not authorize an
appellate court lightly to set aside the district court's
determination.  /6/

   Petitioner also contends (Pet. 16-20) that the three-year delay
between the jury selection and the evidentiary hearing at which the
prosecutor explained her reasons for exercising peremptory strikes
made it impossible for the district court to determine whether the
prosecutor's explanations were credible.  Other courts have held that
the government may rebut a Batson claim by offering explanations of
peremptory strikes at an evidentiary hearing conducted after jury
selection.  See United States v. Romero-Reyna, 889 F.2d 559, 561 n.6
(5th Cir. 1989), cert. denied, 110 S. Ct. 1818 (1990);  United States
v. Chalan, 812 F.2d 1302, 1314 (10th Cir. 1987), cert. denied, 488
U.S. 983 (1988);  United States v. David, 803 F.2d 1567, 1571 (11th
Cir. 1986).  /7/ The possibility that a subsequent hearing might allow
a prosecutor to fabricate reasons for strikes that did not exist at
the time of jury selection is "fit grist for the trial judge's mill as
he assesses the prosecutor's credibility." United States v.
Romero-Reyna, 889 F.2d at 561 n.6.  In this case, the district court
heard the prosecutor's testimony at the evidentiary hearing, which was
supported by notes she prepared during the voir dire of petitioner's
jury.  /8/ Petitioner suggests no reason to conclude that the district
court was unable to evaluate the credibility of the prosecutor's
explanations.

   Finally, petitioner contends (Pet. 2-5) that his trial attorney
denied him "the opportunity to meaningfully participate * * * in the
selection of his jury" by failing to advise him of his right to attend
and have counsel present at the initial voir dire of the jury panel
from which his jury was ultimately selected and failing to provide him
with the jury qualification questionnaires that were filled out by
prospective jurors.  Although petitioner refers (Pet. 2-3) to the
"initial qualification" of the jury panel as a "critical stage" of his
trial, testimony at the evidentiary hearing indicated that this was
merely the first meeting of the panel from which juries, including
petitioner's jury, would be selected over the next few months.  See
C.A. App. 158, 237-238, 248-249.  Thus, the initial voir dire of the
jury panel was not part of petitioner's trial at all, much less a
"critical stage" of that trial.  /9/ Moreover, petitioner did
participate substantially in the selection of his jury.  Petitioner's
trial counsel testified at the evidentiary hearing, and petitioner
does not dispute, that before selecting petitioner's jury the trial
attorney prepared an annotated list of the prospective jurors using
the jury qualification questionnaires, and that she reviewed the
annotated list with petitioner while the prospective jurors were
present and enlisted his help in deciding which jurors to strike.
C.A. App. 238-239, 241.  /10/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Assistant Attorney General

   NINA GOODMAN

      Attorney

   DECEMBER 1990

   /1/ In explaining her reasons for striking particular members of
the jury venire, the prosecutor relied on handwritten notes that she
had made during the jury selection.  C.A. App. 135-137, 406-407.

   /2/ In addition, the prosecutor stated that she struck Cuyler
because his occupation was the same as petitioner's.  C.A. App. 143.

   /3/ The court also rejected petitioner's argument that the
prosecutor's preparation for the hearing suggested that the reasons
she articulated for her use of peremptory challenges were pretextual,
stating that it "found the prosecutor's testimony worthy of belief."
C.A. App. 419.

   /4/ Petitioner also argued that he was denied his right to
participate in the selection of his jury, and that the delay between
the jury selection and the evidentiary hearing at which the prosecutor
explained her reasons for exercising peremptory strikes prevented the
district court from making the necessary credibility determinations.
The court refused to consider these contentions, stating that "(w)e
are confined on this appeal to the issue for which this court remanded
the case to the district court." Pet. App. A6-A7.

   /5/ The courts of appeal have uniformly applied a deferential
standard of review in Batson cases that involve the evaluation of
inferences from particular records.  See, e.g., United States v.
Power, 881 F.2d 733, 739 (9th Cir. 1989);  United States v. Moreno 878
F.2d 817, 820 (5th Cir.), cert. denied, 110 S. Ct. 508 (1989);  United
States v. Battle, 859 F.2d 56, 58 (8th Cir. 1988);  United States v.
Biaggi, 853 F.2d 89, 96 (2d Cir. 1988), cert. denied, 109 S. Ct. 1312
(1989);  United States v. Clemons, 843 F.2d 741, 746-747 (3d Cir.),
cert. denied, 488 U.S. 835 (1988).

   /6/ The petition should not be held for the Court's disposition of
Hernandez v. New York, cert. granted, No. 89-7645 (Oct. 9, 1990).
Although Hernandez does raise issues with respect to the sufficiency
of a prosecutor's explanation under Batson as well as the standard of
review to be applied to a trial court's acceptance of the prosecutor's
explanation, the explanations offered here are quite different from
those involved in Hernandez and would be sufficient under any standard
of review. ##FN7

   /7/ Petitioner's reliance (Pet. 16-17) on Jones v. Butler, 864 F.2d
348 (5th Cir. 1988), for a contrary result is unavailing.  In that
case, the Fifth Circuit merely held that a defendant who does not make
a contemporaneous objection to the government's use of peremptory
challenges is barred from later raising a Batson claim.  Id. at
369-370.

   /8/ Petitioner's assertion (Pet. 19) that the prosecutor's notes
were not prepared contemporaneously with the jury selection is simply
incorrect.  See C.A. App. 135-137.

   /9/ Petitioner does not dispute that he was present during the
actual selection of his jury.  Petitioner's reliance on United States
v. Toliver, 541 F.2d 958, 964 (2d Cir. 1976), in which the court
suggested in dicta that "a defendant's absence during the empanelling
of a jury" might require reversal of his conviction, is therefore
misplaced.  United States ex rel. Williams v. DeRobertis, 715 F.2d
1174 (7th Cir. 1983), the other decision on which petitioner relies,
is even less helpful to petitioner.  In that case, the court held
that, even assuming that the "Sixth Amendment does secure a
defendant's right to participate in jury selection," a defendant need
not be aware of that right in order to make a valid waiver of his
right to jury trial.  Id. at 1179-1182.

   /10/ Petitioner also contends (Pet. 6-14) that his trial attorney's
performance was deficient in a number of other respects.  These claims
were neither raised in nor considered by the court of appeals,
however, and may not now properly be raised for review.  See Adickes
v. S.H. Kress & Co., 398 U.S. 144, 147 n.2 (1970);  Lawn v. United
States, 355 U.S. 339, 362 n.16 (1958);  Husty v. United States, 282
U.S. 694, 701-702 (1931);  Duignan v. United States, 274 U.S. 195, 200
(1927).