HAYWOOD C. REED, PETITIONER V. UNITED STATES OF AMERICA No. 89-6866 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 Fifth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-8) is not reported. JURISDICTION The judgment of the court of appeals was entered on December 7, 1989. The petition for a writ of certiorari was filed on March 5, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner established a prima facie case of discrimination in the government's exercise of peremptory challenges. STATEMENT After a jury trial in the United States District Court for the Eastern District of Louisiana, petitioner was convicted of conspiracy to possess with intent to distribute approximately two kilograms of cocaine hydrochloride, in violation of 21 U.S.C. 841(a)(1) and 846 (Count One), possession with intent to distribute approximately two kilograms of cocaine hydrochloride, in violation of 21 U.S.C. 841(a)(1) (Count Two), and use of a firearm during commission of a drug trafficking crime, in violation of 18 U.S.C. 924(c)(1) (Count Three). He was sentenced to a total of eleven-and-one-half years' imprisonment. The court of appeals affirmed. Pet. App. 1-8. 1. Following the voir dire of the jury panel, petitioner's counsel stated to the trial court that if the government were to exercise any peremptory challenges against black prospective jurors, it would be required to furnish a legal memorandum justifying its action. The district court replied that a memorandum was unnecessary; instead, the court indicated that if counsel had an objection under Batson v. Kentucky, 476 U.S. 76 (1986), after observing the strikes, the court would conduct a bench hearing. Pet. App. 2-3; Supp. R. at 64-65. During the process of exercising peremptory challenges, defense counsel pointed out that the government had used two peremptory challenges against black jurors and asked the court whether it wished to hold a hearing under Batson. The court indicated that no hearing would be appropriate at that juncture, since the facts did not demonstrate a pattern of racial discrimination. Pet. App. 3. Defense counsel did not raise the issue again until after the jury had been sworn, preliminary instructions had been given, and opening statements had been made. At that point, defense counsel requested the court to hold a hearing under Batson regarding the government's peremptory strikes. The court, however, indicated that such objections were waived because claims under Batson must be presented to the court before the jury is sworn in order to permit the jury to be reempaneled if a violation has occurred. Although the court invited counsel to make a record on the issue, defense counsel did not adduce any facts (beyond the exercise of the two strikes previously noted) indicating that the government had engaged in a pattern of racial discrimination. 2 R.A. at 26-27. 2. The court of appeals affirmed in an unpublished, per curiam opinion. It held that petitioner's second Batson objection was untimely because it should have been "made before the unselected veniremen (were) dismissed and before the trial beg(an)." Pet. App. 4-5. In any event, the court held petitioner had failed to establish a prima facie case under Batson because he relied only on the bare facts that the government had exercised two peremptory challenges against two black potential jurors, and that petitioner himself is black. Id. at 6. The court pointed out that counsel had failed to create a record showing "the names, number, and racial composition of the venire" despite having had an opportunity to do so. Absent some further showing, the court concluded, the mere exercise of two challenges against blacks did not support an inference of racial discrimination. Ibid. ARGUMENT Petitioner contends (Pet. 5-7) that the court of appeals erred in holding that his Batson claim was untimely, and that he failed to establish a prima facie case of discrimination. Neither claim warrants this Court's review. The court of appeals correctly held that a Batson challenge is untimely unless "made immediately after completion of the selection of the jury, before the jury venire (is) dismissed and prior to the commencement of the trial." United States v. Romero-Reyna, 867 F.2d 834, 836-837 (5th Cir. 1989) (citing cases); see also Batson, 476 U.S. at 99-100 & n.24 (anticipating timely objections by defendants, presumably before dismissal of venire). Such a rule of timing ensures that any errors in the empaneling of the jury may be promptly corrected before the jury is sworn and the remaining members of the venire dismissed; it also facilitates the compilation of a record regarding the conduct of the government, the racial composition of the jury, and any other pertinent facts bearing on the Batson claim. Government of the Virgin Islands v. Forte, 806 F.2d 73, 75-76 (3d Cir. 1986) (Batson objection held waived due to defendant's untimely assertion; court noted that untimely assertion prevents "accurate account of the racial composition of the jury"). In this case, petitioner made the premature assertion, after voir dire but before the prosecutor had exercised any strikes, that the prosecution had to justify his removal of all black jurors in a legal memorandum submitted to the court. The trial court properly rejected that argument and informed counsel that a bench hearing could be conducted if a proper objection were raised based on the actual use of peremptory strikes. Defense counsel renewed the issue after two peremptory strikes were exercised against blacks, but the court determined at that time that no "pattern" of discrimination could be discerned in the prosecutor's conduct; accordingly, a formal Batson hearing was not appropriate. Petitioner let the issue drop until after the jury was fully selected, sworn, and treated to opening statements. At that time, petitioner tried to reopen the Batson issue and compel the court to hold a hearing. The court of appeals correctly affirmed the trial court's ruling that petitioner had failed to apprise the court in a timely way of any new facts that might require the court to hold a hearing, and to make findings, on the Batson issue. At all events, the court's waiver ruling did not preclude petitioner from making a record of the facts tht he believed might support an inference of discrimination; indeed, the district court invited him to do so. Petitioner, however, failed to add anything to the record beyond the simple fact that the prosecutor had struck two black jurors. As the court of appeals held, that circumstance standing alone does not establish a prima facie case of intentional discrimination. This Court's holding in Batson does not invariably require trial judges to conduct full-blown hearings whenever a prosecutor has exercised a peremptory strike to remove a minority member from the jury venire. Rather, as Batson makes clear, the prosecutor may be required to state his reasons for exercising peremptory challenges only when the defendant establishes a prima facie case that a racially discriminatory motive on the prosecutor's part may reasonably be inferred. 476 U.S. at 97. In considering whether a prima facie case exists, the trial courts are required to assess the full set of facts and circumstances surrounding the exercise of the questioned strikes. While facts such as a pattern of removing black potential jurors, particular comments made by the prosecutor, or other suspicious actions may suggest that a discriminatory motive is at work, the removal of two black jurors, unsupported by any other facts, is not sufficient to support a claim of discrimination under the principles announced in Batson. /1/ Petitioner had "the burden of producing a record in support of a prima facie case of purposeful discrimination." United States v. Sangineto-Miranda, 859 F.2d 1501, 1520 (6th Cir. 1988). /2/ The record relied on by petitioner fails to indicate with any degree of assurance either the racial composition of the venire or the ultimate composition of the jury panel. Moreover, apparently believing that prosecution strikes of prospective black jurors automatically create a prima facie case, see Pet. 2, 5, petitioner failed to place on the record any other facts that would give rise to an "inference" of illegal discrimination. Given petitioner's failure to set forth facts sufficient to satisfy his initial burden of establishing a prima facie case, the court of appeals correctly rejected his Batson claim. 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 SEAN CONNELLY Attorney MAY 1990 /1/ See United States v. Lane, 866 F.2d 103, 107 (4th Cir. 1989); United States v. Moore, 895 F.2d 484, 485 (8th Cir. 1990); United States v. Sangineto-Miranda, 859 F.2d 1501, 1521 (6th Cir. 1988); United States v. Clemons, 843 F.2d 741, 746 (3d Cir.), cert. denied, 109 S. Ct. 97 (1988); cf. United States v. Chalan, 812 F.2d 1302, 1313-1314 (10th Cir. 1987) (noting that "striking of a single juror of defendant's race may not always be sufficient to establish a prima facie case," but finding a prima facie case when three of four American Indians were challenged for cause and prosecutor used peremptory challenge to excuse sole remaining Indian), cert. denied, 109 S. Ct. 534 (1988). /2/ Accord United States v. Dawn, No. 89-1018, slip op. at 6 (8th Cir. Mar. 8, 1990) ("The burden of establishing a prima facie case of purposeful discrimination lies with the individual asserting that his equal protection rights have been violated.") (citing Batson, 476 U.S. at 94 & n.18); Riddick v. Edmiston, 894 F.2d 586, 592 n.7 (3d Cir. 1990) (in rejecting Batson claim, court stated it was "unable to verify that contention from the record before us and it was (defendant's) responsibility to protect and prepare the record").