DAVID D. PRINE, PETITIONER V. UNITED STATES OF AMERICA; MICHAEL D. FREEMAN, PETITIONER V. UNITED STATES OF AMERICA No. 90-6212, No. 90-6218 In The Supreme Court Of The United States October Term, 1990 On Petitions 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. B) /1/ is reported at 909 F.2d 1109. JURISDICTION The judgment of the court of appeals was entered on July 18, 1990. A petition for rehearing was denied on August 21, 1990 (Pet. App. A). The petitions for writs of certiorari were filed on November 13, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the court of appeals erred in holding that the prosecutor's exercise of a peremptory challenge against a black potential juror did not violate the rule anounced in Batson v. Kentucky, 476 U.S. 87 (1986). 2. Whether the evidence was sufficient to support petitioner Prine's convictions. STATEMENT After two joint jury trials in the United States District Court for the Southern District of Iowa, petitioners were convicted of conspiracy to manufacture marijuana, in violation of 21 U.S.C. 846, manufacturing marijuana, in violation of 21 U.S.C. 841(a)(1), and use of firearms in relation to a drug offense, in violation of 18 U.S.C. 924(c). Petitioner Freeman was sentenced to consecutive terms of 12 months' imprisonment on the marijuana counts and 60 months' imprisonment on the firearms count, to be followed by 140 hours of community service; petitioner Prine was sentenced to consecutive terms of 30 months' imprisonment on the marijuana counts and 60 months' imprisonment on the firearms count, to be followed by 160 hours of community service. The court of appeals affirmed petitioners' convictions, but remanded for resentencing (Pet. App. B). /2/ 1. The facts are summarized in the court of appeals opinion (Pet. App. B2-B3). After receiving a tip that marijuana was being grown on property owned by petitioner Freeman's father near Bondurant, Iowa, law enforcement officers posing as neighbors commenced surveillance of the property. During their surveillance, the officers observed petitioner Prine leaving the property on two occasions and observed petitioner Freeman on the property on one occasion. In addition, petitioner Freeman told the undercover officers that he visited the property nearly every day. Pet. App. B2. On September 13, 1988, officers arrived at the property and saw a station wagon parked at the entrance of the path leading to the marijuana patch. One of the officers looked through the windows of the station wagon to check for weapons, but did not see any. Petitioners were observed tending the marijuana patch. As they walked from the marijuana patch towards the station wagon, petitioners were arrested. When arrested, petitioner Freeman had a loaded .38 caliber revolver on his person. Petitioner Prine was arrested as he was standing next to the station wagon. The rear door to the station wagon was open, and officers found a loaded .22 caliber pistol and a knife on the floor of the station wagon, next to the place where petitioner Prine stood. Following petitioners' arrests, officers seized 28 marijuana plants from the property. Pet. App. B2-B3. 2. At their first trial, petitioners were each convicted of both marijuana charges and the firearms charge. Finding that the prosecutor had improperly commented on the fact that petitioners had not testified, the district court granted a new trial on the firearms charge. The court ruled, however, that the comment did not affect petitioners' marijuana convictions and, accordingly, left those convictions undisturbed. Pet. App. B3-B4. /3/ Petitioners were retried on the firearms count alone. During jury selection, the government exercised its peremptory challenges to remove six potential jurors: four white, one Hispanic, and one black. The black potential juror was the sole black on the venire, and her removal resulted in empaneling an all-white jury. Petitioners are white, as was petitioner Prine's counsel; petitioner Freeman's counsel was black. Pet. App. B4. Based on these circumstances, petitioners' counsel argued that the government's use of its peremptory challenge to remove the sole black potential juror constituted prima facie evidence of racial discrimination, thereby requiring the government to offer a racially neutral reason for its strike. The prosecutor responded that petitioners had failed to establish a prima facie case; however, after preserving the argument that no prima facie case was established, the prosecutor volunteered an explanation for her strike of the black juror. Pet. App. C66-C68. The prosecutor explained that in drug prosecutions, once prospective jurors with "obvious problems" are removed, she regularly attempts "to eliminate young, single people who have never been married and who are without children." Pet. App. C68. According to the prosecutor, she applies that practice for two reasons. First, "individuals who are young, unmarried and don't have children are more likely to be out in the social setting" where drugs "are very prevalent" and therefore might have "a complacent * * * view towards the use of drugs in our community." Id. at C68-C69. Second, "younger people are generally more liberal in their thinking, and they do not make as good jurors as people who are a little older and more stable." Id. at C69. As the prosecutor noted, the black juror was 33 years of age and, although "she does have children, * * * she is single and more likely to be out in the social setting." Pet. App. C69. The prosecutor further explained that her reasons for striking the black juror were consistent with her reasons for striking other prospective jurors: apart from her first three strikes that were exercised for "some very specific reason," the prosecutor stated that she removed two other jurors and an alternate juror because they were young, single, and might have an exposure to drugs that would not likely be present with older jurors. Ibid. In particular, the prosecutor stated that her non-specific strikes were used to remove a 27 year old, single, Hispanic male; a 26 year old, single, white woman; and a 24 year old, single, white male. Ibid. The district court ruled that a prima facie case had not been established under the particular circumstances of this case. In light of that ruling, the district court found no need to consider the adequacy of the prosecutor's proffered explanation for her challenge of the black juror. Pet. App. C67-C68; Gov't C.A. App. 66. 3. The court of appeals affirmed petitioners' convictions. It first held that even though petitioners are white and the excluded prospective juror is black, "defendants of any race have standing in their own trial to challenge a juror's exclusion on equal protection grounds." Pet. App. B7. The court further stated that "the striking of a single black juror for racial reasons violates the equal protection clause." Id. at B8. The court nonetheless rejected petitioners' claim under Batson v. Kentucky, 476 U.S. 87 (1986). Based on its review of the record, the court was convinced that the district judge's determination that no prima facie case of discrimination had been established was not clearly erroneous. Pet. App. B8. The court also went on to state that the reasons offered by the prosecutor and "the composition of the panel ultimately selected (which included older and/or married persons)" supported the district judge's determination that no equal protection violation occurred. Ibid. The court of appeals also rejected summarily petitioner Prine's claim that the evidence was insufficient to support his convictions. Pet. App. B8. ARGUMENT 1. Petitioners contend (Prine Pet. 7-10; Freeman Pet. 5-9) that the courts below erred in rejecting their claim that the prosecutor violated Batson in exercising a peremptory challenge to remove the only black prospective juror on the venire. That contention lacks merit, and petitioners do not assert a conflict with the decision of any other court of appeals. Review by this Court is therefore unwarranted. a. In Batson, this Court held that in order to establish a prima facie case of purposeful discrimination in the selection of the petit jury, a criminal defendant must show the existence of "relevant circumstances (that) raise an inference that the prosecutor used (his peremptory challenges) to exclude the veniremen from the petit jury on account of their race." 476 U.S. at 96. If the defendant makes such a prima facie showing, "the burden shifts to the (prosecutor) to come forward with a neutral explanation for challenging black jurors." Id. at 97. In this case, the prosecutor denied that any prima facie case was established based on her strike of the only black juror on the panel, and the district court and court of appeals accepted that contention. But the prosecutor also provided a detailed explanation of her reasons for exercising the peremptory strike, and her reasons made clear that the strike was not based on racial grounds. In that context, petitioners' contentions regarding the sufficiency of their prima facie showing are largely beside the point. The purpose of the prima facie inquiry is to determine whether the prosecutor must explain the reasons for exercising particular peremptory challenges. In this case, the prosecutor did so, and the court of appeals found her explanations to be both credible and adequate under Batson. Cf. United States v. Clemmons, 892 F.2d 1153, 1156 (3d Cir. 1989) (holding that once the prosecutor provides his explanation, the reviewing court should consider it even if a prima facie case was not established), cert. denied, 110 S. Ct. 2623 (1990). /4/ As required by Batson, the prosecutor offered an explanation for the peremptory strike exercised against the black juror that was clear, specific, race-neutral, and related to the particular case to be tried. See Batson, 476 U.S. at 98 & n.20. The prosecutor further explained that two other jurors and one alternate juror -- none of whom were black -- were removed for similar reasons. See United States v. Johnson, 905 F.2d 222 (8th Cir. 1990). As the prosecutor stated, she followed a customary practice in drug cases of removing jurors who were young, single, and childless. The rationale for removing such jurors, she explained, is to produce a jury that is older, more mature, more conservative, and less likely to travel in a social milieu in which drug usage is tolerated. The prosecutor explained that the excluded black juror -- like the other similarly situated jurors who were excluded -- was removed because "she (wa)s single and more likely to be out in the social setting" in which drugs are prevalent and tolerated. Pet. App. C69. Prosecutors may properly exercise their peremptory challenges based on considerations of youthfulness and marital status, because it is legitimate for prosecutors both to prefer jurors who are more mature and experienced, /5/ and to exclude jurors who might harbor sympathy for the accused because of demographic similarities. /6/ Reviewing the record, the court of appeals concluded that the prosecutor's explanation was both racially-neutral and credible because the composition of the jury that the prosecutor accepted corroborated her jury-selection strategy: it generally consisted of older and married persons. /7/ Pet. App. A8. There is no merit to petitioner's contention (Prine Pet. 8) that the explanation offered by the prosecutor was necessarily pretextual because, unlike the other jurors excluded for demographic reasons, the black potential juror was a parent. As the record shows, that juror was, like the other demographically excluded jurors, relatively young and single, and the prosecutor stated that it was her unmarried status that ultimately prompted the strike; the prosecutor's reason was that an unmarried person would be more likely to be part of a social setting in which a permissive attitude about drugs prevailed. Although such a rationale might not satisfy the requirements of a challenge for cause, Batson "emphasize(d) that the prosecutor's explanation need not rise to the level justifying exercise of a challenge for cause." 476 U.S. at 97. Evaluated under the standards of race-neutrality mandated by Batson, the prosecutor's explanation was sufficient. /8/ b. Petitioners' challenges to the district court's rejection of their prima facie showing are also without merit. First, petitioners suggest (Prine Pet. 9; Freeman Pet. 5-7) that the district court based its finding that no prima facie case existed on the fact that petitioners, as white defendants, had no standing to contest the exclusion of a black prospective juror. Petitioners are incorrect. The district court did not rest its ruling on that basis. See Pet. App. C67-C68; Gov't C.A. App. 66. Rather, the district court merely stated that there was nothing in the circumstances of the jury selection process that would indicate that the prosecutor employed her peremptory challenge for a racially discriminatory reason. For its part, the court of appeals specifically rejected the view that petitioners lacked standing to contest the prosecutor's removal of the black juror. Pet. App. B7. Instead, the court explicitly accorded petitioners standing to assert their Batson claim. Accordingly, this case does not present the question whether white defendants can challenge the exclusion of black jurors under Batson that is before the Court in Powers v. Ohio, No. 89-5011 (argued October 9, 1991). Second, petitioner Freeman contends (Freeman Pet. 3, 5) that the district court's rejection of his prima facie case denied him the opportunity to challenge the prosecutor's explanation in this case as being pretextual. The record refutes that assertion. After the prosecutor offered her reasons, the following colloquy ensued: THE COURT: Okay. Anything further at this time? (PETITIONER'S COUNSEL): No, Your Honor. Nothing, except the record speaks for itself. I think (the excluded juror) indicated she had two kids, 17 and some other age, and that also she worked for the Department of Revenue. I just find that awful puzzling, but I think we have made our record, Your Honor. THE COURT: I think you have made your record. * * * Gov't C.A. App. 70 (emphasis added). If petitioner had more evidence to offer, he had the opportunity to present it. Finally, petitioner Freeman contends (Freeman Pet. 8) that there was no evidence to support the district court's finding that a prima facie case was not made out on this record. That fact-bound claim does not warrant this Court's attention. It is also incorrect. In this case, petitioners provided no support for challenging the prosecutor's action but for the fact that the excluded juror is black. The Court in Batson explained that in determining whether the defendant has made the requisite showing to establish a prima facie case of intentional discrimination, the trial court "should consider all relevant circumstances." 476 U.S. at 96-97 (emphasis added). Relevant factors may include "the prosecutor's questions and statements during voir dire examination and in exercising his challenges (that) may support or refute an inference of discriminatory purpose." Ibid. Here, there was nothing in voir dire to support an inference of discriminatory intent, the defendants are white and the crime has no racial overtones, and the prosecutor did not exercise her peremptory challenge against the black juror until she had used up five other strikes. Those circumstances fully justify the district court's finding that there was no prima facie case of purposeful discrimination. 2. Petitioner Prine contends (Prine Pet. 11-17) that the evidence was insufficient to support his convictions. Viewed in the light most favorable to the government, the evidence was sufficient. Prine argues that the evidence failed to establish that he either manufactured marijuana or participated in a conspiracy to do so. His contention is unpersuasive. At the initial trial, Prine stipulated to "any and all witnesses' testimony with regard to the marijuana" and to "the existence of any and all marijuana" seized on the Freeman farm. Gov't C.A. App. 30-31. In particular, the stipulated evidence showed that officers saw 30 to 50 well-cultivated marijuana plants growing on the Freeman farm during August 1988; that the officers observed Prine leaving the farm by automobile on one of these occasions and observed Prine's car at the farm on another occasion; that officers observed Prine, in the company of Freeman, measuring and watering the marijuana plants on September 13, 1988; and that 28 plants weighing a total of 60 pounds were seized from the farm immediately after Prine and Freeman were arrested as they walked from the marijuana patch. Id. at 3743. That evidence was ample to support Prine's drug convictions. /9/ There was also sufficient evidence presented at the second trial to show that petitioner Prine used or carried a firearm in relation to a drug trafficking crime. Liability under Section 924(c) "does not depend on proof that the defendant had actual possession of the weapon or used it in any affirmative manner," but only that "the firearm was available to provide protection to the defendant in connection with his engagement in drug trafficking." United States v. Raborn, 872 F.2d 589, 595 (5th Cir. 1989). That requirement was satisfied here. The officers visually inspected Freeman's station wagon when they arrived at the farm, but saw no firearms in the station wagon. When petitioners emerged from the marijuana patch, Freeman was arrested and a firearm found on his person. Prine was arrested as he stood at an open rear door of the station wagon, with a holstered .22 caliber pistol resting nearby on the car's floorboards. In those circumstances, the jury could reasonably have inferred that Prine -- like Freeman -- "used" or "carried" a firearm for protection in relation to his on-going cultivation of the nearby marijuana crop. See United States v. Garrett, 903 F.2d 1105, 1111 & n.7 (7th Cir. 1990) (collecting cases, and holding that the evidence was sufficient under Section 924(c) where defendant was attempting to open door of car in which a firearm and drugs were present); United States v. Rosado, 866 F.2d 967, 969-970 (7th Cir.) (evidence sufficient under Section 924(c) where weapon was placed in car parked near scene of planned drug transaction), cert. denied, 110 S. Ct. 117 (1989). CONCLUSION The petitions for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General ROBERT J. ERICKSON Attorney FEBRUARY 1991 /1/ Unless otherwise noted, "Pet. App." refers to the appendix to petitioner Freeman's petition, No. 90-6218. /2/ Because fewer than 50 marijuana plants were involved in this case, the district court had, in determining the offense levels for petitioners' marijuana offenses, applied the Drug Equivalency Table in Sentencing Guideline Section 2D1.1 to convert the number of plants involved into weight by use of a fixed conversion ratio. The court of appeals ruled that the district court should have determined the offense level based on the actual weight of the marijuana plants involved. Pet. App. B9-B10. /3/ The court of appeals affirmed that ruling, Pet. App. B6, and petitioners do not challenge it in this Court. /4/ Petitioner Prine errs in contending (Pet. 10) that a Batson violation occurs based on the exclusion of a black juror "notwithstanding the Prosecutor's reason for it." The purpose of Batson is to prevent racially motivated strikes of black jurors; it does not immunize black jurors from peremptory challenges based on nonracial grounds. /5/ See United States v. Mitchell, 886 F.2d 667, 671-672 & n.2 (4th Cir. 1989); United States v. Moreno, 878 F.2d 817, 820 (5th Cir.), cert. denied, 110 S. Ct. 508 (1989); United States v. Davis, 871 F.2d 71, 72-73 (8th Cir. 1989); United States v. Lance, 853 F.2d 1177, 1180-1181 (5th Cir. 1988); United States v. Clemons, 843 F.2d 741, 748 (3d Cir.), cert. denied, 488 U.S. 835 (1988). /6/ See United States v. Garrison, 849 F.2d 103, 105 (4th Cir.), cert. denied, 488 U.S. 835 (1988); United States v. McCoy, 848 F.2d 743, 745 (6th Cir. 1988). /7/ Although the court of appeals initially focused on the prima-facie-case issue, Pet. App. B8, its subsequent analysis dealt not only with that issue, but also with the adequacy of the prosecutor's explanations. The court discussed the reasons articulated by the prosecutor for her strike, and concluded that "(t)hese reasons, and the composition of the jury ultimately selected" supported "the district court's finding that no equal protection violation occurred." Ibid. /8/ The petitions should not be held for the Court's disposition of Hernandez v. New York, No. 89-7645 (to be argued Feb. 25, 1991). Although Hernandez presents 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 district court's acceptance of the prosecutor's explanations, the explanation offered here is quite different from those involved in Hernandez and would be sufficient under any standard of review. /9/ As the court of appeals noted (Pet. App. B3), Prine's counsel conceded in his summation during the initial trial that Prine had "essentially and effectively * * * admitted possession of the marijuana." In addition, at the second trial on the firearms count, Prine admitted during his testimony that he and Freeman were partners in a marijuana-growing venture. Gov't C.A. App. 137-143.