ROBERT SCOTT, PETITIONER V. UNITED STATES OF AMERICA No. 90-5083 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 Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The judgment order of the court of appeals (Pet. App. A) is unpublished, but the decision is noted at 904 F.2d 713. JURISDICTION The judgment of the court of appeals was entered on May 9, 1990. The petition for a writ of certiorari was filed on July 9, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the government's explanation for its peremptory strikes of three black prospective jurors was adequate under Batson v. Kentucky, 476 U.S. 79 (1986). STATEMENT Following a jury trial in the United States District Court for the Southern District of Alabama, petitioner was convicted of conspiring to commit extortion and committing extortion, in violation of 18 U.S.C. 1951. He was sentenced to six months' imprisonment, to be followed by two and one-half years' probation. Petitioner is black. The jury venire for petitioner's trial included five black prospective jurors. During jury selection, the government used three of its peremptory challenges to strike black venirepersons. Two blacks served on the jury that ultimately convicted petitioner. Gov't C.A. Br. 3. At the close of jury selection, petitioner's counsel moved to quash the jury, contending that the government's use of its peremptory challenges to strike black prospective jurors was motivated by racial discrimination. In response, the prosecutor explained his reasons for striking the three black venirepersons. The prosecutor stated that one of the prospective jurors, a black man, was challenged because he was wearing an open shirt and gold chains, leading the prosecutor to believe that he would be more likely to sympathize with petitioner than with the government, and because he had indicated during voir dire that he had seen petitioner before. The other two prospective jurors, both black women, were struck because they were unmarried mothers, which the prosecutor believed might indicate that they were lacking in judgment and morality. Gov't C.A. Br. 3-4. After hearing these explanations, the district court denied petitioner's motion to quash the jury. In a post-trial motion, petitioner again alleged that the prosecutor had discriminated during jury selection. The court denied that motion as well, explaining that the prosecutor had furnished racially neutral reasons for striking the black prospective jurors. Gov't C.A. Br. 4. On appeal, petitioner renewed his claim of purposeful discrimination during jury selection. The court of appeals affirmed without opinion. Pet. App. A. ARGUMENT Petitioner contends (Pet. 3-9) that the government's use of its peremptory challenges violated Batson v. Kentucky, 476 U.S. 79 (1986). /1/ That factbound claim does not warrant this Court's review. Petitioner's principal argument (Pet. 8) is that the district court should have found that the prosecutor's explanations for his use of peremptory challenges to strike black 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 and cogency of the government's explanations, rather than simply determine that they are race-neutral and related to the particular case to be tried. Batson, 476 U.S. at 89. As to credibility, the court of appeals is not well-situated to second-guess the trial court's judgment. 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."). /2/ As to cogency, a reviewing court is not to determine whether the prosecutor had good reasons for his strikes, only whether he acted for race-neutral reasons that have some plausible relation to the trial at hand. See Batson, 476 U.S. at 97 ("we emphasize that the prosecutor's explanation need not rise to the level justifying exercise of a challenge for cause"). In this case, the prosecutor carefully explained his reasons for striking the black prospective jurors. The factors on which the prosecutor relied -- familiarity with the defendant, style of dress, and unmarried status -- have been recognized as valid in cases involving Batson challenges. See, e.g., United States v. Briscoe, 896 F.2d 1476, 1488-1489 (7th Cir. 1990) (possibility that prospective juror might be familiar with government witnesses was legitimate reason for peremptory challenge); United States v. Eagle, 867 F.2d 436, 442 (8th Cir.) (prosecutor's perception that a juror is "hostile or unfriendly to the prosecution based on the subjective evaluation of (the juror's) dress and mannerisms is precisely the reason why peremptory challenges exist"), cert. denied, 109 S. Ct. 1764 (1989); United States v. Terrazas-Carrasco, 861 F.2d 93, 94 (5th Cir. 1988) (valid reasons for exclusion of juror may include prosecutor's "intuitive assumptions" based on factors such as marital status). Petitioner fails to identify any factors in this record that undermine the determinations of both courts below that racial considerations did not motivate the prosecutor's actions. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General NINA GOODMAN Attorney AUGUST 1990 /1/ Petitioner also seems to contend (Pet. 3) that his claim arises under the Sixth Amendment. This Court recently held, however, that a defendant cannot establish a Sixth Amendment violation based on the theory that the prosecutor engaged in the racially motivated use of peremptory strikes. Holland v. Illinois, 110 S. Ct. 803 (1990). /2/ The courts of appeals 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, 109 S. Ct. 97 (1988).