ROBERT HOUSTON WOODS, PETITIONER V. UNITED STATES OF AMERICA No. 90-6028 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 Eighth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals, Pet. App. 1-23, is reported at 902 F.2d 1320. JURISDICTION The judgment of the court of appeals was entered on May 7, 1990. Pet. App. 25. A petition for rehearing was denied on July 6, 1990. Id. at 24. The petition for a writ of certiorari was filed on October 4, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the affidavit supporting a search warrant failed to establish probable cause because it contained allegedly stale and misleading information. 2. Whether petitioner established a prima facie case of purposeful discrimination in the prosecutor's exercise of peremptory challenges. STATEMENT Following a jury trial in the United States District Court for the Eastern District of Missouri, petitioner was convicted of one count of conspiracy to distribute cocaine, and to possess cocaine with intent to distribute it, in violation of 21 U.S.C. 846 (Count 1), and of three counts of possession of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1) (Counts 7, 14, and 17). The district court sentenced him to consecutive terms of 15 years' imprisonment on Count 7 and ten years' imprisonment on Count 14, to be followed by a six-year period of supervised release; to a term of ten years' imprisonment on Count 17, to run concurrently with the sentences on Counts 7 and 14; and to a term of 20 years' imprisonment on Count 1, to run concurrently with the sentences of imprisonment on the other three counts. Pet. C.A. App. 19-20. The court of appeals affirmed. Pet. App. 1-23. 1. The evidence at trial, the sufficiency of which is not in dispute, showed that petitioner was an active member of a conspiracy to distribute cocaine in the St. Louis, Missouri, area from March 1986 to March 1987. The conspiracy was directed from Los Angeles by John Alvin Payne, who used a courier to transport cocaine by commercial airline flights from Los Angeles to St. Louis, where it was distributed to petitioner and others for further distribution. Pet. App. 4-5. On March 10, 1987, Sergeant Harry Hegger of the St. Louis Metropolitan Police Department obtained, on application to a United States magistrate, a search warrant for the premises at 1093 Mariners Point Court in St. Louis. By its terms, the warrant expired on March 20, 1987. Pet. App. 28-46, 26-27. The warrant was not executed because of concerns on the part of law enforcement personnel that to do so would jeopardize the ongoing investigation. Id. at 65. On March 20, 1987, Sergeant Hegger applied for a second search warrant for 1093 Mariners Point Court. Pet. App. 49-74. His supporting affidavit stated that wiretap orders had been issued in December 1986 and January 1987 for two St. Louis-area telephones. On the basis of analysis of the wiretap logs for the telephones, surveillance reports, and pen register and toll record information, Sergeant Hegger concluded that John Alvin Payne was distributing large amounts of cocaine in St. Louis with the assistance of Clara Davis. Payne caused the cocaine to be shipped from Los Angeles to Davis in St. Louis. She in turn distributed it to other individuals, including petitioner, who was known as "Bobby" and whose address was believed to be 1093 Mariners Point Court. Pet. App. 64-65; Gov't C.A. Br. 3-4. According to Sergeant Hegger's affidavit, on January 13, 1987, Davis and Payne had a telephone conversation and discussed petitioner and other co-conspirators. Approximately two hours after that conversation, petitioner called Davis and said he was on the way to her house. On January 16, 1987, after a courier used by Payne to transport cocaine from Los Angeles to St. Louis had arrived in St. Louis, Payne and Davis had a telephone conversation in which she said she had seen all but two of her co-conspirators. Davis told Payne that she had seen Bobby. Pet. App. 58-59; Gov't C.A. Br. 4. On January 20, 1987, Sergeant Hegger related, Payne and Davis again spoke on the telephone, and she informed Payne that she was holding cash collected from Bobby. Davis told Payne the amounts of money owed by the other co-conspirators. Later that day, in a second conversation, Payne told Davis that Bobby could use any cocaine left over. Pet. App. 60; Gov't C.A. Br. 4. On January 30, 1987, according to the affidavit, Payne's courier made another cocaine delivery to St. Louis. That same day, during a telephone conversation, Payne directed Davis to see Bobby and three co-conspirators. The same afternoon petitioner called Davis and said he would be by in a half-hour. Petitioner was later observed arriving at Davis's residence. Nine minutes after arriving, he left carrying a brown paper grocery-sized bag. That evening, during another phone conversation with Payne, Davis said she had given Bobby "three" and had "one" left. Payne told her to give it to Bobby. Sergeant Hegger stated his belief that the numbers referred to kilogram quantities of cocaine. Pet. App. 61; Gov't C.A. Br. 4-5. On February 20, 1987, after what Sergeant Hegger believed to be another cocaine delivery, petitioner called Davis, who told him that she had "two" messages for him. (Hegger believed the number to be a code word for a kilogram of cocaine.) Less than an hour later, petitioner arrived at Davis's residence, stayed momentarily, then went to 1093 Mariners Point Court in St. Louis. Less than two hours later, Payne called Davis and asked if she had "any" in. Davis said she had "12" in from Bobby. (Hegger believed the "any" to refer to money, and the "12" to $12,000.) Pet. App. 61-62; Gov't C.A. Br. 5. /1/ Between March 10 and March 17, 1987, Payne and Davis had a series of telephone conversations in which they discussed petitioner. On March 10, Davis told Payne she had not heard anything from Bobby. Payne said it was time for him to perform. Payne and Davis said that Bobby was holding up Payne's program. On March 14, Davis again told Payne that she had not heard from Bobby. The next day, Payne told Davis that Bobby was holding him up because Bobby was way overdue. On March 17, Payne told Davis that he had been informed that Bobby would be locked up for seven weeks. Pet. App. 66-69; Gov't C.A. Br. 5. On the basis of these facts, Sergeant Hegger stated his belief that cocaine, drug trafficking paraphernalia, and drug trafficking records were located at 1093 Mariners Point Court. Pet. App. 74. The magistrate issued the warrant, id. at 47-48, which was executed on March 25, 1987. The search revealed 111 grams of cocaine and a lease in petitioner's name for the premises. Gov't C.A. Br. 3. 2. a. At pretrial hearings before a United States magistrate, petitioner and his co-defendants challenged the validity of search warrants issued for 1093 Mariners Point Court and various other locations on the ground, inter alia, that they were based on stale information. The magistrate rejected that argument. The district court subsequently affirmed the magistrate's recommendation, and the evidence seized at 1093 Mariners Point Court was admitted at petitioner's trial. Pet. C.A. Br. 2-3. b. At the trial of petitioner and his co-defendants, a lengthy voir dire produced a panel of 46 qualified jurors that included seven blacks. The district court permitted petitioner and his co-defendants 20 peremptory challenges and the government 12. The government struck one black male, two black females, two white males, and seven white females. The jury was composed of one black male, three black females, six white males, and two white females. Gov't C.A. Br. 8. Relying on Batson v. Kentucky, 476 U.S. 79 (1986), petitioner and his co-defendants attacked the composition of the jury as racially discriminatory. Petitioner's counsel stated: Based on the percentages the government have (sic) available to it, 12 of 46, or 26%, I feel that we make a prima facie case by these statistics to show that they have exercised their peremptory challenges in a manner which is in excess of the percentages that were available to them according to the number of strikes in comparison with the total number on the panel and that it is the responsibility of the government to come forward at this time, if they can with neutral explanations * * *. 3 Tr. 16. Petitioner and his co-defendants offered no other evidence of racial discrimination in the jury selection process. The district court found that petitioner and his co-defendants had not made out a prima facie case of racial discrimination under Batson. Gov't C.A. Br. 9. 3. The court of appeals affirmed. Pet. App. 1-23. Although the court discussed at length various contentions raised by petitioner and his co-defendants, it did not see a need specifically to discuss petitioner's contentions that the information in the affidavit supporting the March 20, 1989, search warrant was stale and misleading, requiring the suppression of evidence seized pursuant to the warrant, and that petitioner's jury had been selected in a racially discriminatory fashion. With respect to these and certain other issues raised by petitioner and his co-defendants, the court said: "Appellants present a number of other arguments, each of which we have carefully considered, and which we find to be without merit." Pet. App. 23. ARGUMENT 1. Petitioner contends (Pet. 7-16) that the presence of allegedly stale and misleading information in the affidavit underlying the search warrant for his residence requires suppression of the evidence seized pursuant to the warrant. That factbound contention raises no issue worthy of this Court's review. Two established principles of probable cause dispose of petitioner's staleness argument. First, when information in a search warrant affidavit points to illegal activity of a continuous nature, passage even of several months between the facts recited in the affidavit and issuance of the warrant does not render the information in the affidavit stale. United States v. Hershenow, 680 F.2d 847, 853 (1st Cir. 1982). That principle applies with special force when, as here, the defendants are engaged in a continuing criminal enterprise. Because the offense by its very nature persists over time, the passage of some interval between the particular transactions on which a warrant is based and the issuance of the warrant itself is of less significance than in other probable cause determinations. United States v. Jones, 801 F.2d 304, 314 (8th Cir. 1986); see United States v. Batchelder, 824 F.2d 563, 564 (7th Cir. 1987); United States v. Lueth, 807 F.2d 719, 727 (8th Cir. 1986); United States v. Ellison, 793 F.2d 942, 947 (8th Cir.), cert. denied, 479 U.S. 937 (1986). Second, in deciding whether information in an application for a search warrant is stale, a magistrate may consider not only the continuing nature of the offense, but also the nature of the items to be seized under the warrant. A magistrate may reasonably consider that books, records, and other documents reflecting cocaine transactions would be kept at a residence for an extended period of time, not lightly discarded or shifted from place to place. See Andersen v. Maryland, 427 U.S. 463, 478-479 n.9 (1976) (probable cause to believe that business records would be retained three months after completion of transactions on which search warrants based); United States v. Word, 806 F.2d 658, 662 (6th Cir. 1986), cert. denied, 480 U.S. 922 (1987). In the present case, Sergeant Hegger's March 20 affidavit established probable cause to believe that Payne and Davis were engaged in a continuing criminal enterprise that transported cocaine from Los Angeles to St. Louis for distribution by petitioner. Petitioner's name cropped up repeatedly in intercepted conversations about cocaine distribution during January, February, and March 1987 -- including March 17, three days before the issuance of the warrant. Pet. App. 69. Because petitioner had once taken cocaine that he was to distribute from Davis's home to the residence at 1093 Mariners Point Court, Pet. App. 62, it was reasonable for the magistrate to conclude that he might keep records of his cocaine transactions at that location. Given the continuing nature of the offenses being investigated and the nature of the articles to be seized pursuant to the warrant, the passage of ten days between the issuance of the two warrants does not cast doubt on the magistrate's finding of probable cause as of March 20. Petitioner is mistaken in claiming (Pet. 11) that information about his incarceration was not provided to the magistrate who issued the March 20 search warrant, and that this "material omission" required the district court to conduct an evidentiary hearing under Franks v. Delaware, 438 U.S. 154 (1978). Sergeant Hegger's March 20 affidavit specifically referred to petitioner's incarceration. See Pet. App. 69 (Payne told Davis that he has been informed that "Bobby would be locked up for seven weeks"). Because this allegedly "material" fact was not omitted from the Hegger affidavit, the district court was under no obligation to conduct a Franks hearing. Moreover, even if the affidavit had not referred to petitioner's incarceration, that omission would not have risen to the level of misrepresentation under Franks unless it undermined the existence of probable cause. United States v. Ellison, 793 F.2d at 947; United States v. Dennis, 625 F.2d 782, 791 (8th Cir. 1980). Here, far from negating the existence of probable cause, petitioner's absence from 1093 Mariners Point Court favored a determination that there continued to be probable cause. Petitioner's detention would have prevented him from removing the cocaine and the other items identified in the search warrant from the Mariners Point Court address. Petitioner errs in contending (Pet. 12-15) that the decision below conflicts with Filippelli v. United States, 6 F.2d 121, 125 (9th Cir. 1925), and Sgro v. United States, 287 U.S. 206 (1932). In Filippelli, an initial search warrant was executed before a second warrant, authorizing an essentially identical search, was issued. The court of appeals held that the first search accomplished the purpose of the second warrant; hence, the issuance of the second warrant was an abuse of the court's process. 6 F.2d at 125. Here, however, the first search warrant was never executed. In Sgro, a search warrant that was originally issued by a United States commissioner on July 6 was not executed within the statutory ten-day period. On July 27, without taking new proof of the existence of probable cause and without making a finding that probable cause existed, the commissioner simply changed the date on the warrant and reissued it. 287 U.S. at 208. The Court held the second warrant invalid because it was not supported by a fresh determination of probable cause. Id. at 211. In the instant case, however, Sergeant Hegger provided new evidence in his March 20 affidavit that the cocaine distribution conspiracy to which petitioner belonged continued to operate. See Pet. App. 65-71. With that information, the magistrate made a new finding of probable cause. Id. at 47-48. There is also a critical distinction between the nature of the investigations here and in Filippelli and Sgro. In both of those cases, warrants were supported by information relating only to particular sales of intoxicating liquors. In neither case was there, as here, a large-scale, continuing criminal enterprise. In the latter setting, the passage of time between the transactions on which a search warrant is based and the issuance of the warrant is a less important factor in the determination of probable cause. See United States v. Jones, 801 F.2d at 314. 2. Petitioner also contends (Pet. 17-20) that the district court erroneously determined that he had not made out a prima facie case of discrimination in the selection of his petit jury. The courts below, however, properly applied the principles of Batson v. Kentucky, 476 U.S. 79 (1986), in rejecting this fact-bound contention, and their complementary factual determination does not warrant further review. 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). a. In Batson, this Court established the evidentiary framework for assessing whether a defendant has made out a case of purposeful discrimination in the selection of his petit jury. The initial requirement is that the defendant establish a prima facie case of discrimination, which shifts the burden to the prosecution to provide an explanation of its challenges. In determining whether a prima facie case has been established, "the trial court should consider all relevant circumstances," 476 U.S. at 96-97, including whether there was a pattern in the prosecutor's challenges, and whether any statements or comments suggest a discriminatory motive. The Batson procedures were properly implemented here. Petitioner's claim that a prima facie case of purposeful discrimination was established rested exclusively on statistical grounds. See, e.g., 3 Tr. 16 ("I feel that we make a prima facie case by these statistics"). The courts of appeals, however, have recognized that numbers alone do not make out a case of prima facie discrimination under Batson. See United States v. Jordan, 893 F.2d 182, 183-184 (8th Cir.), vacated on other grounds, 110 S.Ct. 2581 (1990); United States v. Fuller, 887 F.2d 144, 146-147 (8th Cir. 1989), cert. denied, 110 S.Ct. 2592 (1990). /2/ Rather, "all relevant circumstances" should be considered. 476 U.S. at 96-97. In the circumstances here, the district court correctly found that a prima facie case had not been established. The venire of 46 persons included seven blacks. The prosecution had 12 peremptory challenges. If the prosecution had been bent on discriminating, it could have used those challenges to exclude all blacks from the petit jury. But the prosecution used three of it challenges to exclude blacks and the remaining nine to exclude whites. Four of the seven blacks in the venire were members of petitioner's jury. The percentage of blacks serving on the jury (33%) was therefore double the approximate percentage of blacks on the venire (15%). On comparable records, the courts of appeals have had no difficulty in concluding that a trial judge may find the absence of a prima facie case. See United States v. Walton, 908 F.2d 1289, 1297-1298 (6th Cir.) (percentage of blacks in the pool was double the percentage of blacks chosen for the jury, and prosecutor had unused peremptory challenges), cert. denied, 111 S. Ct. 273 (1990), and Nos. 90-5984, 90-6005 (Nov. 26, 1990); United States v. Dawn, 897 F.2d 1444 (8th Cir.) (government used six of seven peremptory challenges to strike blacks, but two black jurors and one black alternate juror served), cert. denied, No. 90-5432 (Nov. 5, 1990); United States v. Moore, 895 F.2d 484, 486 (8th Cir. 1990) (government used four of six peremptory challenges to strike blacks, but three blacks sat on jury); United States v. Grandison, 885 F.2d 143 (4th Cir. 1989) (government used six of nine peremptory challenges to strike blacks, but two blacks sat on jury and three blacks served as alternates), cert. denied, 110 S. Ct. 2178 (1990); United States v. Roger, 850 F.2d 435, 437 (8th Cir. 1988) (government used three of seven peremptory challenges to strike blacks, but jury included two blacks and one black alternate). /3/ Petitioner fares no better by selectively discussing (Pet. 18-19) the responses of a few venirepersons on voir dire. It is possible that disparate treatment of similarly situated jurors might support the inferences needed to establish a prima facie case. But any such conclusion must be based on the specific characteristics of individual jurors based on the entire record, and on close familiarity with the entire voir dire process. Crude comparisons on the basis of a few voir dire responses are not adequate for that purpose. The district court is in an excellent position to take such factors into account; this Court, reviewing isolated fragments of the record and lacking familiarly with the critical details, is not. For those reasons the Court made clear in Batson that trial courts should be granted substantial deference in deciding whether a prima facie showing of discrimination had been made: "We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black jurors." 476 U.S. at 97. /4/ b. Petitioner further contends (Pet. 19-20) that the principles of Batson should be extended to apply to the exclusion of young people and women through peremptory strikes. Those claims do not warrant this Court's attention in the present context. We are aware of no authority for the contention that Batson applies to the exclusion of young persons. On the contrary, courts have consistently held that a prosecutor may validly justify a peremptory challenge under Batson by explaining his preference for older, more mature jurors, or his desire to remove young jurors who might identify with young defendants. See, e.g., United States v. Nicholson, 885 F.2d 481, 482-483 (8th Cir. 1989) (prosecutor may permissibly prefer older persons as potential jurors); United States v. Clemons, 843 F.2d 741, 748-749 (3d Cir.) (prosecutor's striking of "young, single panel members" was "logical in the context of a narcotics prosecution"), cert. denied, 488 U.S. 835 (1988). Other courts have directly rejected the proposition that age-based groups are cognizable under Batson. Graham v. Lynaugh, 854 F.2d 715, 722-723 (5th Cir. 1988) (18-year-olds not a cognizable group), vacated on other grounds, 109 S. Ct. 3237 (1989); United States v. Cresta, 825 F.2d 538, 545 (1st Cir. 1987) (young adults not a cognizable group), cert. denied, 486 U.S. 1042 (1988). To extend Batson to such non-racial groups not only departs from Batson's specific purpose of protecting against racial discrimination in jury selection, it also threatens to eliminate the peremptory challenge as a valuable tool in achieving impartial juries. Cf. Holland v. Illinois, 110 S.Ct. 803, 810 (1990). /5/ The circuits have, however, taken different approaches to the question whether Batson applies to gender-motivated strikes. The Fourth Circuit has squarely rejected the proposition that Batson applies to gender-based peremptory challenges. United States v. Hamilton, 850 F.2d 1038, 1042 (1988), cert. dismissed, 109 S. Ct. 1564 (1989), and certs. denied, 110 S. Ct. 1109-1110 (1990). Similarly, the Third and Eighth Circuits have upheld the adequacy of explanations under Batson that relied in part on the gender of the excluded juror, which suggests that those courts would not extend Batson to such strikes. See United States v. Nicholson, 885 F.2d at 482-483; United States v. Wilson, 867 F.2d 486, 488 (8th Cir.) (prosecutor's "general practice" of preferring male jurors was neutral, nonpretextual reason for exercising peremptory strikes), cert. denied, 110 S.Ct. 92 (1989). On the other hand, the Ninth Circuit has recently concluded Batson's equal-protection rationale does prohibit the exercise of a peremptory challenge on the basis of gender. United States v. De Gross, 913 F.2d 1417 (1990). /6/ We believe that Batson's rationale of eradicating purposeful, racial discrimination in jury selection does not support extension of Batson's rule to gender-based challenges. Although the question whether Batson applies to gender-based peremptory challenges may warrant this Court's attention in an appropriate case, review of that issue is not warranted here. First, petitioner barely raised that issue in the court of appeals, and provided absolutely no authority or argument in support of his position. Petitioner's court of appeals' brief devoted but a single sentence to the issue. Pet. C.A. Br. 16 (stating only "(w)e believe it is appropriate to extend Batson to classes involving women and young people."). As a result, the court of appeals gave no explicit consideration of the issue, and may have -- quite properly -- deemed it waived. The doubts about the adequacy of petitioner's preservation of the issue, and the court of appeals' opportunity to consider it, render this an inappropriate vehicle for review of the issue. Second, even if Batson were extended to women, petitioner would not stand to benefit from such a ruling. Even under the most generous view of the record, there was no prima facie case of discrimination. Petitioner again relies exclusively on a numerical argument, coupled with a selective discussion of the voir dire. Pet. 18-19. That showing is no more persuasive with respect to alleged gender discrimination than it is with respect to alleged racial discrimination. /7/ Third, for petitioner to assert a claim of gender discrimination against female jurors, he would have to establish "standing" even though he is not a member of the excluded class. No court of appeals has even addressed that issue, let alone granted such standing. In Powers v. Ohio, No. 89-5011 (argued October 9, 1990), the question presented is whether a white defendant has standing to raise a Batson objection to peremptory challenges of black jurors. If the Court rejects the defendant's claim in Powers, it logically follows that petitioner's claim would fail. But even if the Court were to accept standing for white defendants to challenge the exclusion of black jurors, it by no means follows that the Court should relax conventional standing principles to the point where a male defendant would have standing to challenge the gender-based exclusion of female jurors. Gender discrimination is not governed by the same equal protection principles applicable to racial discrimination. Even the Ninth Circuit has limited the parties who have standing to assert the gender-based Batson claim it recognized in De Gross. Cf. Connie Dias v. Sky Chefs, Inc., No. 89-35778 (9th Cir. Nov. 27, 1990), slip op. 14651-14652 (refusing to allow corporate litigant in a civil case to raise a claim of gender discrimination in jury selection based on De Gross). To allow a male defendant to claim that a peremptory strike against a woman was exercised on the basis of gender -- particularly in a case in which gender issues are apparently irrelevant -- would have profound implications for the peremptory challenge system that no court has considered. This Court should not be the first. /8/ 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 THOMAS M. GANNON Attorney DECEMBER 1990 /1/ The facts set out in the affidavit that related to events occurring on January 13, 16, 20, and 30, 1987, and February 20, 1987 also appeared in Sergeant Hegger's affidavit supporting the March 10 warrant. See Pet. App. 37-42. The March 20 affidavit, after noting the issuance of the earlier warrant, stated, id. at 65, that the matters contained in this affidavit indicate that the evidence believed to be (located at 1093 Mariners Point Court) is largely of a type that would be there continuously, and thus that the probable cause supporting the initial search warrant continues to exist. /2/ This Court's disposition of the Batson case itself supports the view that numbers alone do not necessarily establish a prima facie case of discrimination. Although the State in Batson used its peremptory challenges to strike all the blacks on the venire, and the jury that convicted Batson, a black man, was therefore all white, the Court left open for remand the question whether the defense had established a prima facie case of discrimination. See 476 U.S. at 83, 100. /3/ Petitioner suggests (Pet. 18) that the court of appeals failed to follow United States v. Hughes, 880 F.2d 101, 103 (8th Cir. 1989). Any conflict between the decision below and Hughes, however, presents only a disagreement within the Eighth Circuit. This Court does not sit to review intra-circuit conflicts. See Wisniewski v. United States, 353 U.S. 901 (1957). /4/ Moreover, petitioner did not make this argument in the district court. See Gov't C.A. Br. 10 & n.1. Absent exceptional circumstances, which surely are not present here, this Court will not review an argument that was not raised in the courts below. See United States v. Lovasco, 431 U.S. 783, 788 n.7 (1977). /5/ In Holland, the Court held that the Sixth Amendment does not forbid the exclusion of certain identifiable groups from petit juries through the use of peremptory challenges. Petitioner's reliance (Pet. 20) on Holland is therefore misplaced. Indeed, one of the Court's principal rationales -- that restricting group-based challenges "would positively cripple the device of peremptory challenges," 110 S. Ct. at 809 -- also counsels strongly against the dramatic extension of the equal protection rule of Batson to young persons, or for that matter, women, or any non-racial group. /6/ In De Gross, the court extended Batson to a gender-based peremptory strike exercised by the defendant. The court held that the United States has standing to challenge a defendant's discriminatory exercise of a peremptory challenge, and that the district court in that case had properly granted the government's motion to deny De Gross a peremptory challenge because it was based on gender. But because the Ninth Circuit also held that the government had exercised a peremptory challenge against a different juror on a discriminatory basis, De Gross's conviction was reversed and the case remanded for a new trial. /7/ Indeed, the gender claim is particularly unimpressive. Petitioner notes (Pet. 18) that 21 of the 46 venirepersons were female, and that the government used nine of its 12 strikes against women. But this hardly bespeaks a "pattern" of discrimination; indeed, a huge number of cases will similarly vary from the roughly 50-50 split between males and females that one would expect to see in gender-neutral peremptory challenges. If such minor deviations as this were to trigger a prima facie case, prosecutors would end up explaining their peremptory challenges as a routine matter. /8/ As a third reason for granting his petition, petitioner refers (Pet. 21) to a petition for a writ of certiorari to be filed by co-defendant John Alvin Payne. The Solicitor General has no record that co-defendant Payne has petitioned this Court for certiorari.