RICKY DAWN, PETITIONER V. UNITED STATES OF AMERICA No. 90-5432 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 OPINIONS BELOW The opinion of the court of appeals (Pet. App. A) is reported at 897 F.2d 1444. The order of the district court denying petitioner's motion for a new trial (Pet. App. B) is unreported. JURISDICTION The judgment of the court of appeals was entered on March 8, 1990. A petition for rehearing was denied on May 14, 1990. The petition for a writ of certiorari was filed on August 10, 1990. The jurisdiction of this Court is invoked under 28 U.S. C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner established a prima facie case of discrimination in jury selection based solely on the number of peremptory challenges exercised by the prosecutor against black jurors. 2. Whether, if a prima case was established, the prosecutor offered nondiscriminatory explanations for his peremptory challenges. STATEMENT After a jury trial in the United States District Court for the Western District of Arkansas, petitioner was convicted of armed bank robbery, in violation of 18 U.S.C. 2113(a) & (d). /1/ Petitioner was sentenced to a term of 108 months' imprisonment, to be followed by a four-year term of supervised release. The court of appeals affirmed. 1. In late December 1987 and early January 1988, Aaron McCree and Curtis Stevens planned to rob a bank courier; they later recruited petitioner to participate in the robbery. /2/ On January 15, 1989, courier Janice Adcock left the main bank by automobile with $55,000 in her possession. En route to a branch office, Adcock stopped behind a pickup truck at a four-way stop intersection. While an accomplice in the truck motioned for other cars stopped at the intersection to proceed, petitioner approached Adcock's vehicle, knocked on the window with a gun, and entered the vehicle when Adcock opened the door. Petitioner forced Adcock to drive to an isolated area, where they were met by another person. Petitioner then locked Adcock in the trunk of her car and departed with the other person and the money. Pet. App. A1446. 2. Petitioner is black. At petitioner's trial, the venire consisted of 33 white and 13 black prospective jurors. After voir dire and challenges for cause, the venire consisted of 29 white members and 9 black members. Petitioner and his co-defendants were allotted 17 peremptory challanges, including one challenge for the alternate juror; all 17 challenges were exercised against white potential jurors. The government was allotted seven peremptory challenges, including one challenge for the alternate juror. The government exercised its challenges to remove six black and one white potential jurors. The resulting petit jury consisted of ten whites, two blacks, one white alternate, and one black alternate. Pet. App. A1446-1447. Arguing that the goverment's use of its peremptory challenges constituted prima facie evidence of racial discrimination, the defense moved that the district court grant a mistrial or, in the alternative, that the court require the government to furnish racially neutral reasons for its strikes. Without a request from the court, the government volunteered the following explanations for its strikes of black potential jurors: one was struck because a test regarding a job application would affect the juror's ability to be present during one of the scheduled trial days; a second was struck because the juror was near the age of the defendants, and the government wanted an older, more conservative juror; a third was struck because the juror was inattentive during the voir dire; a fourth was struck because the juror had health and sight problems that might have impaired her ability to follow the evidence; and two others were struck because investigation disclosed that members of their families had criminal background. Pet. App. A1447. The government also volunteered that it had struck one white juror because the juror was ambivalent about her ability to follow a reasonsable doubt instruction. Id. at C9. 3. The district court rejected petitioner's challenge to the jury selection process, both at trial and in denying a motion for a new trial. After "carefully review(ing) the facts and circumstances surrounding the jury selection," the court found that "no inferences of purposeful discrimination were raised by the Government's conduct." However, even if a prima facie case of racial discrimination had been established, the court further found that "the Government has clearly articulated neutral explanations for its exercise of each of the six peremptory challenges used to strike black jurors." Pet. App. B7. 4. The court of appeals affirmed. The court noted that "numbers alone are not sufficient to establish or negate a prima facie case" of racial discrimination. Pet. App. A1448. Rather than considering only the number of challenges exercised against blacks, the court explained, trial courts must consider all relevant circumstances that might reveal a discriminatory purpose, including the existence of "(a) pattern of striking blacks and the prosecutor's questions and statements during voir dire." Ibid. In the present case, the court concluded that the numbers proffered by the defense were not sufficient. It observed that "(t)he prosecutor's voir dire consisted of only a few questions concerning potential scheduling and health problems and general questions regarding experiences with the government." Furthermore, "(t)here was no evidence beyond the number of blacks struck to indicate a pattern of excluding blacks." Ibid. Hence, the court concluded that the district court's determination that petitioner had failed to establish a prima facie case of racial discrimination was not clearly erroneous. Ibid. The court also observed that the prosecutor had volunteered explanations for each of its peremptory strikes. Those explanations, although not required, "provided additional support for our affirmance of the district court." Pet. App. A1449 n.5. ARGUMENT 1. Petitioner contends (Pet. 5-7) that the courts below erred in holding that he failed to establish a prima facie case of racial discrimination in the prosecutor's exercise of his peremptory challenges. That contention lacks merit, and petitioner does not assert a conflict with the decision of any other court of appeals. In Batson v. Kentucky, 476 U.S. 79 (1986), 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." Id. at 96. Only after the defendant makes such a prima facie showing does "the burden shift() to the (prosecutor) to come forward with a neutral explanation for challenging black jurors." Id. at 97. In this case, petitioner's only ground for claiming a Batson violation is an argument from numbers: the prosecutor used six of his seven peremptory challenges to remove black jurors from the jury. On comparable record, however, the courts of appeals have held that where other circumstances do not indicate the likelihood of discrimiation, the use of peremptory challenges to strike disproportionate numbers of black jurors is not enough to establish a prima facie case. That is particularly true, the courts have held, when some black jurors were ultimately seated, as was true here. See 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/ Those cases are consistent with the Court's opinion in Batson. The Court explained that in determining whether the defendant has established a prima facie case of intentional discrimination, the trial court "should consider all relevant circumstances." 476 U.S. at 96-97 (emphasis added). The Court noted that a pattern of strikes against black jurors "might give rise to an inference of discrimination," id. at 97, but the Court was careful not to suggest that such a pattern would compel such an inference. The Court stated that trial judges would be in a position to consider other factors, such as "the prosector's questions and statements during voir dire examination and in exercising his challenges (that) may support or refute an inference of discriminatory purpose." Ibid. /4/ Finally, the Court in Batson made clear 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. /5/ The concurrent determination of both courts below that petitioner did not establish a prima facie case is fully compatible with Batson's principles. The trial judge, who presided over voir dire and had ample familiarity with the government's conduct, was in the best position to make an accurate determination on the issue whether the government had intended to discriminate. As the district court stated, "the facts and circumstances surrounding the jury selection process" revealed "no inferences of purposeful discrimination." Pet. App. B7. Reviewing this ruling, the court of appeals stated that "(t)here was no evidence beyond the number of blacks struck to indicate a pattern of excluding blacks." Pet. App. A1445. /6/ Nothing in Batson supports petitioner's reliance on numbers alone to overturn the conclusion. 2. Even assuming that the courts below erred in rejecting petitioner's prima facie case -- a proposition with which we disagree -- that issue would not warrant review here. The purpose of the prima facie case inquiry is to determine whether the prosecutor must explain the reasons for particular peremptory challenges. In this case the prosecutor did so, and the district court accepted his explanations as 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). As required by BAtson, the prosecutor's explanations for each of his peremptory strikes were clear, specific, race-neutral, and related to theparticular case to be tried. See Batson, 476 U.S. at 98 & n.20. The prosecutor stated that one juror was removed because she had health and sight problems that would affect her ability to follow the evidence. The concern that a prospective juror's health problems might impair her ability to sit is, of course, unrelated to race. See United States v. Alston, 895 F.2d 1362, 1367 (11th Cir. 1990) (juror struck because of hearing impairment). A second juror was removed because the juror stated that the trial schedule would conflict with a test that the juror had to take in connection with a pending job application. Not only was this explanation race-neutral, it was grounded on the reasonable concern that a juror who served at the expense of pursuing an employment opportunity might well harbor resentment towards any and all of the participants in the trial. Two other jurors were challenged because information furnished to the prosecutor by law enforcement officers revealed that the jurors had family members with criminal histories. Courts have recognized that it is permissible for prosecutors to strike jurors whose family members have had unfavorable experiences with the criminal justice system. See United States v. Alston, 895 F.2d at 1367; United States v. Rodrequez, 859 F.2d 1321, 1324 (9th Cir. 1988); United States v. Vaccaro, 816 F.2d 443, 457 (9th Cir.), cert. denied, 484 U.S. 914 (1987). A fifth juror was removed because the juror was yound and near the age of the defendants. This explanation was proper since it is legitimate for prosecutors both to prefer jurors who are more mature and experienced, 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. Clemons, 843 F.2d 741, 748 (3d Cir.), cert. denied, 488 U.S. 835 (1988), and to exclude jurors who might sympathize with the accused because of a similarity of age, see United States v. Garrison, 849 F.2d 103, 105-106 (4th Cir.), cert. denied, 488 U.S. 996 (1988); United States v. McCoy, 848 F.2d 743, 745 (6th Cir. 1988). Finally, a sixth juror was challenged because the juror was inattentive during voir dire. This too was an acceptable reason for excluding a juror, devoid of any racial motivation. See United States v. Ruiz, 894 F.2d 501, 506-507 (2d Cir. 1990) (peremptory challenge properly exercised due to juror's demeanor and inattentiveness). Based on these credited explanations, the district court ruled that even if "it were determined that a prima facie case of purposeful discrimination had been established * * * (,) the Government has clearly articulated neutral explanations for its exercise of each of the six peremptory challenges used to strike black jurors." Pet. App. B7. The court of appeals noted that this factor supported the rejection of petitioner's Batson claim. Id. at A1449 n.5. In light of the adequacy of these explanations, the judgment of the court of appeals would be the same even if it had accepted petitioner's claim that he had established a prima facie case. /7/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Acting Assistant Attorney General ROBERT J ERICKSON Attorney OCTOBER 1990 /1/ Petitioner was found not guilty of possession and use of a firearm during the commission of a crime of violence, in violation of 18 U.S.C. 924(c). /2/ Stevens pleaded guilty to armed bank robbery. McCree was convicted on the same charge after his joint trial with petitioner. /3/ This Court recently denied review on a similar issue in Stigler v. United States, cert. denied, No. 89-7354 (Oct. 1, 1990), in which the defendant argued that a prima facie case of racial discrimination had been established solely on the basis that the government had used five of its six peremptory strikes to remove blacks from the jury. /4/ As the court of appeals noted, Pet. App. A1448, the Court's disposition of the Batson case itself supports the view that numbers alone do not establish a prima facie case of discrimination in the exercise of peremptory challenges. Although the State in Batson used its peremptory challenges to strike the four blacks on the venire, 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. /5/ See also United States v. Moore, 895 F.2d at 486 (review of denial of a Batson claim conducted under a highly deferential standard); 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, 488 U.S. 835 (1988). /6/ For example, the court of appeals noted that the prosecutor's voir dire inquiry was racially neutral in character. Moreover, two blacks served on the jury, although the prosecutor had not exhausted his peremptory strikes. /7/ The petition should not be held for the Court's disposition of Hernandez v. New York, cert. granted, No. 89-7645 (Oct. 9, 1990). That case does not involve the standards for finding a prima facia case under Batson, which is the issue raised by petitioner here. Moreover, although Hernandez does raise 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 explanation, the explanations offered here are quite different from thos involved in Hernandez and would be sufficient under any standard of review.