ROBERT DONALD STIGLER, PETITIONER V. UNITED STATES OF AMERICA No. 89-7354 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. 1-11) is not reported, but the judgment is noted at 898 F.2d 151 (Table). JURISDICTION The judgment of the court of appeals (Pet. App. 12) was entered on March 2, 1990. The petition for a writ of certiorari was filed on April 30, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner established a prima facie equal protection violation based on the prosecutor's exercise of his peremptory challenges, under the standards of Batson v. Kentucky, 476 U.S. 79 (1986). STATEMENT After a jury trial in the United States District Court for the Northern District of Mississippi, petitioner was convicted of conspiring to distribute marijuana, in violation of 21 U.S.C. 846 (Count 1); engaging in a continuing criminal enterprise, in violation of 21 U.S.C. 848 (Count 2); using a telephone to facilitate the commission of a drug offense, in violation of 21 U.S.C. 843(b) (Counts 3-5); traveling interstate to facilitate a drug business, in violation of 18 U.S.C. 1952 (Counts 7, 9, and 11); and possessing marijuana with intent to distribute it and distributing marijuana, in violation of 21 U.S.C. 841(a)(1) (Counts 6, 8, and 10). Petitioner was sentenced to a total of 25 years' imprisonment. The court of appeals affirmed. Pet. App. 1-11. 1. The evidence at petitioner's trial, the sufficiency of which is not challenged, is summarized in the opinion of the court of appeals. Pet. App. 2-5. Government witnesses Pam and Gary Lance testified that petitioner engaged in a lucrative marijuana distribution operation with members of the Lance family beginning in 1978. Petitioner remained at the center of the operation until its termination in 1986, although membership in the operation changed over the years due to the deaths of some participants and petitioner's efforts to reorganize the group to avoid detection. During the course of the conspiracy, petitioner brought large quantities of marijuana into Mississippi through suppliers in Florida and Latin America; the marijuana was thereafter parceled out to a network of major distributors who delivered the marijuana to the customers. Even when incarcerated on unrelated drug charges in the early 1980s, petitioner continued to run his drug operation through trusted lieutenants and to expand it through contacts that he made while in prison. The operation ultimately collapsed in 1986 because of petitioner's financial double-dealings with other members of the operation. Ten of petitioner's former associates testified against him at trial. 2. Petitioner is a white male. He was represented in the district court by a white attorney, although a black attorney also appeared on his behalf during jury selection. When the parties exercised their peremptory challenges, the government used five of its six challenges to strike black veniremen. Petitioner then objected that the government's use of its peremptory challenges violated the rule in Batson v. Kentucky, 476 U.S. 79 (1986). Petitioner moved the district court to require the prosecutor to explain why he had challenged five black jurors and, if the court determined that those challenges were racially motivated, to strike the jury panel. Tr. 65-66. The prosecutor responded that race was totally irrelevant to the selection of the jury in this case and that his peremptory strikes were based on non-racial information and research pertaining to individual jurors. Gov't C.A. Br. 49; Tr. 67. The prosecutor explained (Tr. 66-67): This is a case where I don't think either side thought about race as an issue. The defendant is white, all of our witnesses are white, as a matter of fact, even all of the defendant's witnesses are white. It's a case where there's not a black person involved. We simply exercised the challenges based on the research we'd done and race is not an issue. As Your Honor knows, we try cases where there's a black defendant where there's any possibility of race being an issue * * * we're careful to go through and set out reasons. I don't think in this case that this set of facts rises to the level even to race as an issue. Race is totally irrelevant in this case. The district court agreed with the prosecutor's argument and denied petitioner's motion. Tr. 67. The jury that convicted petitioner was composed of one black and 11 white jurors. 3. The court of appeals rejected petitioner's claim that the government should have been required to state racially unbiased reasons for striking the black veniremen. Pet. App. 9-10. The court first held that petitioner "failed to show that he is a member of a cognizable group and that the prosecutor used his peremptory strikes to remove from the venire members of his race," as required under Batson v. Kentucky, 476 U.S. 79 (1986). Pet. App. 9-10. In addition, the court held that petitioner had failed to demonstrate any "facts and circumstances that raise(d) an inference that those jurors struck were excluded on account of their race." Id. at 10. ARGUMENT In Batson v. Kentucky, 476 U.S. 79, 96 (1986), this Court held that, as a matter of equal protection, "a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial." Thus, in order to establish a prima facie case of discrimination that would require the prosecutor to provide "a neutral explanation for challenging black jurors," id. at 97, the Court stated that a defendant must show, inter alia, "that he is a member of a cognizable racial group, * * * and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race," id. at 96. Petitioner contends that the government's use of its peremptory challenges to remove five black jurors from the jury panel violated equal protection principles and that he is not foreclosed from asserting that claim, even though he does not share membership with the struck jurors in a cognizable racial group. The issue that petitioner raises -- whether a white defendant has standing to assert a Batson violation with respect to a prosecutor's removal of black veniremen from a jury panel -- is presently pending before this Court in Powers v. Ohio, certiorari granted, No. 89-5011 (Feb. 20, 1990). If the standing issue were the only ground cited by the court of appeals in support of its ruling on petitioner's Batson claim, it would be appropriate for the Court to hold this case pending the decision in Powers and to dispose of it in light of that decision. The court of appeals, however, did not rest its ruling solely on the standing point, but went on to hold that petitioner also failed to establish a prima facie case of discrimination sufficient to require the government to make a detailed explanation of the reasons for its peremptory challenges. Petitioner has not challenged that holding in this Court, and he did not argue that point in his brief in the court of appeals. See Pet. C.A. Br. 44-45. Because the court of appeals' holding on the prima facie case issue is a fully sufficient alternative ground to support the court's ruling on the Batson issue, there is no need for this Court to hold this case for Powers; instead, it should deny the petition without regard to the outcome of the Powers case. The district court found that petitioner had failed to make a factual showing that would establish a prima facie case of intentional discrimination. Tr. 67. The district court made that ruling after hearing from defense counsel and the prosecutor, and after taking into account the circumstances of this case, including the fact that the case had no racial overtones at all, that the government did not use its peremptory challenges to eliminate all of the blacks from the jury, and that the prosecutor represented that he made his strikes based on research regarding individual jurors, not based on any juror's race. Nothing in the prosecutor's questions or comments during jury selection in any way suggested an intent to discriminate. Nor did petitioner adduce any other facts to support an inference of discriminatory purpose. Petitioner's only ground for claiming a Batson violation in this case is an argument from numbers: that the prosecutor used five of his six peremptory challenges to remove black jurors from the jury. On comparable records, however, the courts of appeals have held that where other circumstances do not indicate the likelihood of discrimination, 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. For example, in United States v. Dawn, 897 F.2d 1444, 1448 (8th Cir. 1990), the government used six of its seven peremptory challenges to strike blacks, but the jury included two blacks, and the court held that "numbers alone are not sufficient to establish or negate a prima facie case." See also 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; no prima facie case of discrimination); 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, No. 89-6673 (May 14, 1990); United States v. Rogers, 850 F.2d 435, 437 (8th Cir. 1988) (government used three of seven peremptory challenges to strike blacks; jury included two blacks and one black alternate). Those cases are consistent with the Court's opinion in Batson. The Court 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. 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 further stated that trial judges would be in a position to consider other factors, such as "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. /1/ Basing a prima facie case solely on a disproportionate rate of challenges to jurors of some cognizable group is especially questionable when the defendant and the challenged jurors are not members of the same group, as in this case. As Justice Kennedy noted in his concurring opinion in Holland v. Illinois, 110 S. Ct. 803, 812 (1990), when the prosecutor uses strikes to exclude jurors "whose only connection with the defendant is the irrelevant factor of race," it is reasonable to suspect "the presence of an illicit motivation, the 'belief that blacks could not fairly try a black defendant.'" Where the defendant and the challenged jurors are not members of the same group, however, that "obvious ground for suspicion is absent," ibid., and it may be sensible not to find a prima facie case of intentional discrimination as readily as in the classic Batson type of case. See also id. at 822 (Stevens, J., dissenting) ("the inference that the discriminatory motive is at work is stronger when the excluded jurors are of the same race or ethnicity as the defendant"). Indeed, if the equal protection analysis of Batson is extended to all cognizable racial or ethnic groups, regardless of the race or ethnicity of the defendant, there will be few trials in which the prosecutor's challenges will not disproportionately exclude members of some racial or ethnic group. To find a prima facie case of intentional discrimination based solely on disproportionate rates of challenging prospective jurors would largely eliminate the requirement in Batson that the defendant establish a prima facie case of discrimination, and in effect would require the government routinely to give a detailed explanation of its peremptory challenges whenever the defendant demanded it. The Court in Batson made clear that trial courts should be granted substantial deference in deciding whether a prima facie showing of discrimination has 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; see also id. at 99 n.22; 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, 109 S. Ct. 97 (1988). In this case, the prosecutor called the district court's attention to precisely the kinds of factors that the Court in Batson noted were important in determining whether the defendant had established a prima facie case, and petitioner cited nothing but the fact that the government had struck black jurors disproportionately. In light of the deferential standard of review prescribed in Batson, the court of appeals properly upheld the district court's determination that petitioner failed to make a sufficient showing to require the prosecutor to explain in detail the reasons for each of his peremptory challenges against black prospective jurors. 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 ROBERT J. ERICKSON Attorney JUNE 1990 /1/ The Court's disposition of the Batson case itself supports the view that numbers alone do not necessarily establish a prima facie case of discrimination in the context of the exercise of peremptory challenges. 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.