LEWIS DORNAL FOUST, PETITIONER V. UNITED STATES OF AMERICA No. 89-6865 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. A1-A7) is not published, but the decision is noted at 878 F.2d 1432 (Table). JURISDICTION The judgment of the court of appeals was entered June 22, 1989. The petition for a writ of certiorari was filed March 5, 1990 and is therefore substantially out-of-time under Rule 13.1 of the Rules of this Court. 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 two 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 Northern District of Texas, petitioner was convicted on one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. 841(a)(1), and on one count of use of a communication facility to facilitate the distribution of cocaine, in violation of 21 U.S.C. 843(b). He was sentenced to concurrent terms of seven years' imprisonment on the first count and four years' imprisonment on the second count. The court of appeals affirmed. 1. On October 27, 1987, an officer working with the Federal Narcotics Task Force at the Los Angeles International Airport observed two men fitting the drug courier profile walking through the terminal. The officer stopped the men and obtained their consent to a search of their persons and automobikle. During the search, the officer recovered a United States Express Mail receipt indicting that one of the men had shipped a package to petitioner at petitioner's Fort Worth address. Pet. App. A2; Gov't C.A. Br. 4. The officer then telephoned Postal Inspector Wayne Meyhers, who went to the post office in Fort Worth, intercepted the Express Mail package addressed to petitioner, and arranged for the package to be sniffed by a Drug Enforcement Administration narcotics detection dog. After the dog alerted officers to the presence of a controlled substance in the package, Meyers obtained a warrant to search the package. When Meyers and Drug Enforcement Administration agents opened the package, they found a white crystalline substance that tested positive for cocaine. The officers replaced most of the cocaine with lactose and resealed the package. Pet. App. A2-A3; Gov't C.A. Br. 4-5. Meyers, disguised as a letter carrier, delivered the package to petitioner at his apartment. The agents then obtained a second search warrant, this time for petitioner's apartment. Upon executing the warrant, the officers found approximately five ounces of cocaine, a quantity of marijuana, and assorted drug paraphernalia. Pet. App. A3; Gov't C.A. Br. 5-7. 2. Petitioner is black. During jury selection at petitioner's trial, the prosecutor used two of his six peremptory challenges to strike black prospective jurors, and petitioner used one peremptory challenge to strike a black prospective juror. No blacks served on the jury that ultimately convicted petitioner. 3/4/88 Tr. 78-79, 90-91. After the prosecutor and defense attorney exercised their peremptory challenges, the jury was seated and sworn, and the remaining members of the jury panel were dismissed. 3/4/88 Tr. 79-80. The district court proceeded to give its preliminary instructions to the jury. 3/4/88 Tr. 80-88. Following these instructions, the indictment was read, and petitioner entered a plea of not guilty. 3/4/88 Tr. 88-89. The court then excused the jury until the following day. 3/4/88 Tr. 90. After the jury had departed, petitioner's counsel objected to the government's use of its peremptory challenges to strike two black prospective jurors. In response, the district court directed the prosecutor to state his reasons for exercising each of these peremptory strikes. Pet. App. A5; 3/4/88 Tr. 90-91. The prosecutor indicated that one of the prospective jurors, Anthony Jenkins, was struck because "he appeared to be a young man the same age or younger than (petitioner)," because he failed to make eye contact with the prosecutor during voir dire, and because his dress and appearance suggested that he might have associations with drug users. Pet. App. A5-A6; 3/4/88 Tr. 91-93. The other prospective juror, Laurene Hill, was struck because the prosecutor was unable to determine the exact nature of her occupation and source of income. /1/ The prosecutor also stated that he "couldn't see (Hill) at all" during voir dire and therefore had no opportunity to make eye contact with her. Pet. App. A5; 3/4/88 Tr. 92-94. Finally, the prosecutor argued that petitioner's Batson challenge was untimely because it was made after the jury had been impaneled and sworn. 3/4/88 Tr. 95. After hearing the government's explanations for the peremptory strikes, the district court noted that the Batson objection "should have been made prior to the swearing of the jury." The court then ruled that "(a)s the record stands at this point," petitioner's challenge to the jury would be denied. 3/4/88 Tr. 95. 3. The court of appeals affirmed. Pet. App. A1-A7. The court first noted that petitioner's Batson objection was untimely under the rule announced in prior Fifth Circuit decisions, which require that such objections be made "before the venire is dismissed and before the trial commences." Pet. App. A5 n.3. Because the district court had requested the government's reasons for the peremptory strikes, however, the court of appeals proceeded to reach the merits of the Batson challenge. Id. In reviewing the district court's "implicit" determination that the challenged peremptory strikes were not motivated by racial discrimination, the court applied a standard of great deference, and it concluded that the district court's finding was not clearly erroneous. Pet. App. A5-A6. ARGUMENT Petitioner renews his contention (Pet. 7-16) that the government's use of its peremptory challenges violated Batson v. Kentucky, 476 U.S. 79 (1986). This factbound claim, which was not raised in a timely manner at trial, does not warrant this Court's review. As an initial matter, both the district court and the court of appeals correctly concluded that petitioner's failure to raise his Batson objection until after the jury had been sworn and the other members of the panel dismissed rendered the objection untimely. See United States v. Romero-Reyna, 867 F.2d 834, 837 (5th Cir. 1989) ("to be timely, the Batson objection must be made before the venire is dismissed and before the trial commences"); Government of the Virgin Islands v. Forte, 806 F.2d 73, 76 (3d Cir. 1986) (defendant waived Batson claim by failing to make any objection at close of voir dire); cf. Batson, 476 U.S. at 100 (motion made before jury was sworn was timely). The requirement that a Batson objection be made before the jury panel is dismissed promotes judicial economy by "allow(ing) the trial court and the prosecutor to reconsider and perhaps change their course of conduct while still possible," thereby "avoid(ing) unnecessary reversals because of errors that could have been averted at trial." Government of the Virgin Islands v. Forte, 806 F.2d at 75-76; see United States v. Forbes, 816 F.2d 1006, 1011 (5th Cir. 1987) (Batson violation "is earily remedied prior to commencement of trial simply by seating the wrongfully struck venireperson"). By failing to object to the government's exercise of its peremptory challenges until after jury selection had been completed and the trial had begun, petitioner waived his Batson claim. See Government of the Virgin Islands v. Forte, 806 F.2d at 76; United States v. Erwin, 793 F.2d 656, 667 (5th Cir.), cert. denied, 479 U.S. 991 (1986). In any event, petitioner's claim lacks merit. Petitioner's challenge to the adequacy of the government's reasons presumes 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. As to credibility, the court of appeals is not well-situated to second-guess the trial court's judgment; for that reason, 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). 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 potential jurors. 3/4/88 Tr. 91-94. The government's strike against a young juror who came to court in a "pink colored shirt" and who fit the description of persons associated with the drug community was perfectly proper in this cocaine-related case. See 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, 109 S. Ct. 97 (1988). And, although petitioner questions (Pet. 13) the legitimacy of the government's removal of a potential juror who failed to make eye contact with the prosecutor, and whose work situation was somewhat obscure, a prosecutor's rapport with a particular juror and his opinion about the juror's profession are typical grist for peremptory strikes. See United States v. Forbes, 816 F.2d 1006, 1010-1011 (5th Cir. 1987) (prosecutor's intuitive sense from juror's posture and demeanor that she was hostile to being in court satisfied his obligation to provide race-neutral reason for the peremptory challenge. 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 APRIL 1990 /1/ The prosecutor noted that his decision to strike a white prospective juror who had indicated that he was an unemployed "investor" was made for a similar reason. Pet. App. A5; Tr. 92.