ANTHONY JEROME WASHINGTON, PETITIONER V. UNITED STATES OF AMERICA HENRY HAMILTON, JR., PETITIONER V. UNITED STATES OF AMERICA ETHEL HAMILTON, PETITIONER V. UNITED STATES OF AMERICA GERALDINE HAMILTON, PETITIONER V. UNITED STATES OF AMERICA CHARLES BLAKE, PETITIONER V. UNITED STATES OF AMERICA THOMAS BROWN, PETITIONER V. UNITED STATES OF AMERICA No. 88-5772, No. 88-5826, No. 88-5827, No. 88-5829, No. 88-5832, No. 88-5834 In The Supreme Court Of The United States October Term, 1988 On Petitions For A Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. A1-A17) /1/ is reported at 850 F.2d 1038. A prior opinion of the court of appeals is reported at 819 F.2d 71. JURISDICTION The judgment of the court of appeals was entered on June 29, 1988. A petition for rehearing was denied on September 7, 1988. The petitions for a writ of certiorari in Nos. 88-5772 and 88-5832 were filed on November 4, 1988; the petitions in Nos. 88-5826, 88-5827, and 88-5829 were filed on November 5, 1988; and the petition in No. 88-5834 was filed on November 7, 1988 (a Monday). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the prosecutor exercised his peremptory challenges in a racially discriminatory manner. 2. Whether the equal protection component of the Fifth Amendment's Due Process Clause or the Sixth Amendment's fair-cross-section requirement prohibits a prosecutor from using peremptory challenges to strike jurors on the basis of their gender. STATEMENT Following a jury trial in the United States District Court for the District of South Carolina, all six petitioners were convicted of possession of heroin with intent to distribute it, in violation of 21 U.S.C. 841 (a) (1) (Count Two); Henry Hamilton, Ethel Hamilton, Geraldine Hamilton, Blake, and Brown were convicted of conspiracy to possess and to distribute heroin, in violation of 21 U.S.C. 846 (Count One), and unlawful use of a telephone, in violation of 21 U.S.C. 843(b) (Count Four); and Henry Hamilton was convicted of possession of cocaine with intent to distibute it, violation of 21 U.S.C. 841 (a) (1) (Count Three), and engaging in a continuing criminal enterprise, in violation of 21 U.S.C. 848 (Count Five). Henry Hamilton was given a life sentence without parole; Ethel Hamilton was sentenced to three years' imprisonment and a 15-year special parole term; Geraldine Hamilton was sentenced to six years' imprisonment; Brown was sentenced to nine years' imprisonment and a 25-year special parole term; Washington was sentenced to 78 months' imprisonment and a 20-year special parole term; and Blake was sentenced to seven years' imprisonment and a 25-year special parole term. /2/ 1. During jury selection before petitioners' trial, the prosecution was allowed eight peremptory challenges, and petitioners, all of whom are black, were allowed 14 peremptory challenges. After six places on the jury had been filled, the jury consisted of one white male, two white females, and three black females. At that point, the government had used four of its peremptory challenges to strike three black women and the only black man on the venire. /3/ Hearing Tr. 18-23; Pet. App. A7. The government struck the next juror called, a black female. Two white females, Jurors No. 38 and No. 31, were then seated without challenge (Hearing Tr. 24; Pet. App. A7-A8). The prosecution then struck another black female; one of the defendants struck a white male; a white female was seated without challenge; two white females and a white male were struck by defendants; a white female was seated; a white male was struck by a defendant; and the government struck another black female (Hearing Tr. 24-26). Following that strike, two white males were seated (id. at 26-27). The jury that tried petitioners thus consisted of six white females, three black females, and three white males. In all, the government used seven of its eight peremptory strikes, all to strike blacks. Petitioners used 13 of their 14 peremptory challenges to strike whites. Both during and after jury selection, petitioners moved for a mistrial on the ground that the government had exercised its peremptory challenges in a racially discriminatory fashion. The district court ruled that petitioners had failed to satisfy their burden under Swain v. Alabama, 380 U.S. 202 (1965), to show systematic exclusion of blacks from juries. The court therefore denied the motion. 2. The court of appeals reversed. 819 F.2d 71. Because petitoners' case was pending on direct appeal when Batson v. Kentucky, 476 U.S. 79 (1986), was decided, the court remanded the case to the district court for an evidentiary hearing to determine whether petitioners could establish a prima facie case of discrimination and, if so, whether the government could offer legitimate nondiscriminatory reasons for its use of peremptory strikes. See Griffith v. Kentucky, 479 U.S. 317 (1987). 3. At the evidentiary hearing on remand, the district court determined that the government's use of all seven of its peremptory challenges to strike black members of the venire established a prima facie case of discrimination (Pet. App. A6). Both of the prosecutors who tried the case then testified as to the government's reasons for exercising its peremptory challenges. The lead prosecutor explained that he had struck the only black male on the venire because he was wearing gold jewelry that resembled drug paraphernalia, one black female because she admitted reading about one of the defendants in the newspaper, another black female because her brother had a criminal record, and a third black female because the prosecutor believed that she was not intelligent enough to understand some of the issues in the case (Hearing Tr. 19-23). The lead prosecutor explained that he had struck the other three black females because he wanted more men on the jury (id. at 24-27). The second prosecutor corroborated much of that testimony and testified that the government struck female venire members because it wanted to decrease the possibility that the jury would be overly sympathetic to the five females among the original defendants (Hearing Tr. 58-62). The lead prosecutor further explained the sequence of the strikes by stating that, after the first six jurors (consisting of five women and one man) had been seated, he struck a black female because of his perceived need to balance the sexual composition of the jury (Hearing Tr. 24). He then allowed two white females, Jurors No. 38 and No. 31, to be seated because he had independent information that they would be good jurors (id. at 32-33). When the government struck the next black female, the prosecutor explained, the defendants had established a pattern of striking white jurors and seating blacks. Thus, it was unlikely that the defendants would strike that juror, and the prosecution struck her to increase the possibility of getting more males on the jury (id. at 34). Finally, when the government exercised its seventh peremptory challenge to strike a black female, the composition of the jury was nine women and one male. Thus, the prosecutor explained that he struck that juror to avoid having the jury become further imbalanced in favor of women over men, even though he had information that she would be "a good juror" (id. at 26). The district court held that the prosecutor had offered reasonable, racially neutral explanations for exercising the government's peremptory challenges. The district court accepted the government's explanation that it wished to have more males on the jury. The court noted that the government accepted three black females on the jury, it had not used its final peremptory challenge, the defendants were using their peremptory challenges to strike only white members of the venire, and the jury was predominantly composed of females. Hearing Tr. 72-77. 4. The court of appeals affirmed (Pet. App. A1-A12). It first upheld the district court's finding that race had played no part in the three peremptory strikes that the prosecutors said they had exercised to limit the number of women on the jury (id. at A5-A9). The court agreed with the district court that the prosecution had exercised its final three challenges "on the basis of sex, not race" (Pet. App. A9). /4/ The court then held (id. at A9-A11) that this Court's decision in Batson did not preclude the government from exercising its peremptory challenges solely on the basis of gender. Finally, the court ruled (Pet. App. A11-A12) that the government's purposeful attempt to exclude women from the jury did not violate petitioners' right to a jury drawn from a fair cross-section of the community, because that right governs only the selection of the venire, and not the composition of the jury that actually tries a defendant. Judge Murnaghan dissented (Pet. App. A13-A17). In his view, the government's assertion that its final three strikes had been used to strike women, not blacks, was "completely wanting in rationality or validity because only black women were struck while no white women were." Pet. App. A14 (emphasis in original; footnotes omitted). Judge Murnaghan rejected the government's explanation that it had struck black women because it could rely on the defendants to strike white women; in his view, that was simply another way of saying that the prosecution had purposefully struck blacks from the jury. Because he would have remanded for a new trial on the ground that the government had improperly exercised its peremptory challenges on the basis of race, Judge Murnaghan found it unnecessary to offer any view on whether peremptorily striking women on the basis of sex violates the Constitution. ARGUMENT 1. Petitioners renew their claim that the prosecutor used his peremptory challenges to exclude members of the venire from the jury solely because they were black. The court of appeals correctly rejected that claim. First, viewed in context, the prosecution's explanation of its use of peremptory strikes is reasonable. After six jurors had been seated, the jury consisted of five women and one man. At that point, the government became concerned that the jury contained a disproportionate number of women. For that reason, the government struck the next juror, a black female. The next two jurors called (Nos. 38 and 31) were white females, both of whom were seated on the jury. According to the prosecutor, the government had received independent information from a county attorney from the area in which those two jurors lived that they would be "pro law enforcement" (Hearing Tr. 33). The prosecutor thus decided that the benefit the government would gain by seating those two jurors outweighed the risk of putting more women on the jury. Having accepted two women jurors when it was already concerned that the jury was predominantly female, however, the prosecution then struck the next juror, a black female. Although the prosecutors believed that she would be a "good juror," they did not have the same kind of information regarding her that they had received concerning Jurors No. 38 and No. 31. The prosecutor testified that he then let four white females pass without challenge because he had only two peremptory challenges left and thought that the defendants might strike those jurors. In fact, the defendants did strike two of those jurors, while striking three males that the prosecution also passed. At that point, the jury was composed of nine females and one male. The government therefore struck the next female, a black, "simply because she was female" (Hearing Tr. 26) and even though it had information that she would be a good juror. The final two jurors seated were males. In short, as the district court found, the prosecutor's last three challenges were intended to achieve a balance between males and females on the jury, not to eliminate black jurors. In context, each of the challenges thus represents a racially neutral exercise of the prosecutor's broad discretion under Batson. The district court's findings are not clearly erroneous. Significantly, the jury that tried petitioners contained three black members. If the prosecutor wished to eliminate blacks from the jury, he would have used the government's final peremptory strike to eliminate an additional black. The fact that he did not do so supports the district court's finding that the prosecutor did not intentionally use his peremptory challenges to exclude blacks. See United States v. Montgomery, 819 F.2d 847, 851 (8th Cir. 1987); United States v. Dennis, 804 F.2d 1208, 1211 (11th Cir. 1986), cert. denied, No. 86-1438 (May 4, 1987). /5/ Insofar as petitioners contend that the court of appeals applied an incorrect standard of review in assessing the district court's findings of fact, that contention is without merit. In Batson itself, this Court stated the standard of review that is to be applied in cases such as this: "Since the trial judge's findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference." 476 U.S. at 98 n.21 (citing Anderson v. City of Bessemer City, 470 U.S. 564, 575-576 (1985)). Here, the court of appeals applied the Anderson standard (see Pet. App. A6, A9), whereas the dissent merely relied on its own view of the prosecutor's credibility, without any mention of the deference to be accorded credibility determinations made by the district court. It is of course true that, in determining whether a district court's finding that there has been no discrimination is clearly erroneous, the court of appeals should consider whether similarly situated white and black jurors have been treated differently. /6/ Petitioners are in error, however, in suggesting (Pet. 9) that the government's explanations were deficient in that regard. Once five female jurors and one male had been seated, the government struck two of the next four female jurors, accepting the two that it did (Nos. 38 and 31) only because it had specific information about them indicating that they would be good jurors from a government perspective. The two struck jurors therefore were not similarly situated to the jurors that the government accepted. And, although the next juror that the government struck also was someone about whom the government had favorable information, the situation confronting the government at that point was quite different from the situation that existed when the government accepted Juror No. 38 and Juror No. 31. The jurors already seated consisted of nine females and one male. The imbalance in the jury had worsened since Nos. 38 and 31 were seated, and the government accordingly assigned greater weight to its desire to correct the imbalance than it had at that earlier time. The difference in treatment of individual jurors was thus explainable by differences in the surrounding circumstances, not by race. It may be true that the district court could have determined on this record that the government's explanations for its strikes were a pretext for racial discrimination, but the court instead determined -- on the basis of the credibility of the witnesses at the hearing -- that the government's explanations were accurate. Applying an appropriately deferential standard of review, the court of appeals upheld that finding. Futher review of petitioners' claim is unwarranted. /7/ 2.a. Petitioners next contend (Pet. 9-13) that this Court's decision in Batson prohibits the government from exercising its peremptory challenges purposefully to exclude women from the jury. Initially, we note that four of the petitioners are men and thus lack standing to raise that contention. See Batson, 476 U.S. at 96 (to succeed in challenge to use of peremptory challenges, defendant must show that he is part of group discriminated against); United States v. Townsley, 856 F.2d 1189, 1190 (8th Cir. 1988) (en banc) (whites cannot protest exclusion of blacks from jury); United States v. Angiulo, 847 F.2d 956, 984 (1st Cir. 1988) (same), cert. denied, No. 88-128 (Oct. 3, 1988) and No. 88-551 (Oct. 31, 1988). In any event, petitioners seek to expand the Batson holding beyond its intended ambit. As an examination of the Court's opinion makes clear, Batson arose out of this Court's longstanding commitment to ensuring that jury selection is not infected by racial discrimination. In Batson, the Court relied heavily on its decision in West Virginia v. Strauder, 100 U.S. 303 (1880), which held that a state "denies a black defendant equal protection of the laws when it puts him on trial before a jury from which members of his race have been purposefully excluded." Batson, 476 U.S. at 85. Moreover, the Court repeatedly emphasized that the harm it sought to redress was that caused by purposeful racial discrimination. Id. at 86-88 (discussing evils inherent in racial discrimination in selection of venire); id. at 88-89 (reaffirming that use of peremptory challenges cannot be used to achieve "purposeful racial discrimination"); id. at 93-98 (relying on prior racial discrimination cases to delineate methods and burden of proving racial discrimination in selection of petit jury); id. at 98-100 (limitations on use of peremptory challenges outweighed by need to "ensure that no citizen is disqualified from jury service because of race"); id. at 100-102 (White, J. concurring) (need to overturn Swain demonstrated by "widespread" practice "of peremptorily eliminating blacks from petit juries"). /8/ Contrary to petitioners' contention, nothing in Batson suggests that the Court intended to extend its holding to peremptory strikes on grounds other than race. Indeed, the Court took pains to emphasize that "the peremptory challenge occupies an important position in our trial procedures," Batson, 476 U.S. at 98, and that a prosecutor ordinarily is entitled to exercize peremptory challenges for any reason at all, id. at 89. Finally, petitioners' argument finds no support in decisions of the courts of appeals. Those courts have properly recognized that defendants belonging to other cognizable racial groups may challenge the purposeful exclusion of members of that group from petit juries. See United States v. Alcantar, 832 F.2d 1175, 1179-1180 (9th Cir. 1987) (Hispanics); United States v. Chalan, 812 F.2d 1302, 1314 (10th Cir. 1987) (American Indians). By contrast, the courts of appeals have rejected attempts to expand Batson to nonracial contexts. See Graham v. Lynaugh, 854 F.2d 715, 722-723 (5th Cir. 1988) (18-year-olds not a cognizable group under Batson); United States v. Cresta, 825 F.2d 538, 545 (1st Cir. 1987) (young adults not a cognizable group), cert. denied, No. 87-969 (June 6, 1988); United States v. Sgro, 816 F.2d 30, 32-33 (1st Cir. 1987) (defendants made insufficient showing that Italian-Americans are a cognizable racial group), cert. denied, No. 87-983 (Feb. 22, 1988); United States v. Dennis, 804 F.2d at 1210 (black males as opposed to blacks not a cognizable group under Batson). Accordingly, petitioners' contention that Batson forbids the purposeful exclusion of women from petit juries is without foundation. Review by this Court is unwarranted. /9/ b. Petitioners also argue (Pet. 13-19) that the prosecutor's exercise of the government's peremptory challenges to exclude women from the jury violates the Sixth Amendment's requirement that a jury be drawn from a fair cross-section of the community. This Court recently reaffirmed that the fair-cross-section requirement regulates only the composition of the venire and not the petit jury. See Lockhart v. McCree, 476 U.S. 162, 174 (1986) ("(w)e remain convinced that an extension of the fair-cross-section requirement to petit juries would be unworkable and unsound, and we decline McCree's invitation to adopt such an extension"). Moreover, the majority of the courts of appeals have rejected the proposition that the fair-cross-section requirement applies to petit juries. See United States v. Thompson, 827 F.2d 1254, 1257 n.2 (9th Cir. 1987); Lindsey v. Smith, 820 F.2d 1137, 1145-1146 (11th Cir. 1987); Teague v. Lane, 820 F.2d 832, 841 (7th Cir. 1987), cert. granted, No. 87-5259 (Mar. 7, 1988); United States v. Salamone, 800 F.2d 1216, 1219 (3d Cir. 1986); Welcome v. Blackburn, 793 F.2d 672, 675 (5th Cir. 1986). The Second Circuit has held that the fair-cross-section requirement applies to petit juries, but it does not apply that stricture where, as here, the group in question is not underrepresented on the jury. See Roman v. Abrams, 822 F.2d 214, 229 (2d Cir. 1987) (en banc). Only the Sixth Circuit appears to hold that the fair-cross-section bars all discriminatory use of peremptory challenges in choosing petit juries. See Booker v. Jabe, 775 F.2d 762, 767-774 (6th Cir. 1985), vacated and remanded sub nom. Michigan v. Booker, 478 U.S. 1001 (1986), reinstated, 801 F.2d 871 (6th Cir. 1986), cert. denied, 479 U.S. 1046 (1987). To resolve that conflict in the circuits, this Court recently granted certiorari in Teague v. Lane, No. 87-5259 (argued Oct. 4, 1988). In Teague, however, the prosecutor used peremptory challenges to exclude all blacks from the petit jury. Here, women were not only represented on the jury, they constituted a majority of its members. Thus, even if this Court were to hold that the fair-cross-section requirement prohibited the government from using its peremptory challenges to exclude an identifiable group from the petit jury, that holding would have no effect here. /10/ Accordingly, petitoners' claim is without merit, and there is no reason to hold this case pending resolution of Teague v. Lane. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. CHARLES FRIED Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General J. DOUGLAS WILSON Attorney JANUARY 1989 /1/ The six petitions to which this brief responds arise from consolidated appeals in the court of appeals, are virtually identical, and contain identical appendices. Thus, "Pet." and "Pet. App." are used generically to refer to all of the petitions and their appendices. /2/ Washington's and Blake's petitions inaccurately state that they received sentences of life without parole, apparently because the petitions are photocopies of Henry Hamilton's. At petitioners' trial, the jury acquitted six other defendants, and the court granted another defendant's motion for judgment of acquittal. /3/ The venire for petitioners' trial consisted of 19 white males, 19 white females, 11 black females, and one black male. Pet. App. A6. /4/ The court of appeals stated that petitioners had conceded that the government's first four peremptory challenges were not racially motivated (Pet. App. A7). In their petition for rehearing in the court of appeals, and in their petitions for a writ of certiorari (at 4), petitioners have disputed that they made that concession. Their brief in the court of appeals, however, nowhere contains any argument that the first four strikes were discriminatory, and the certiorari petitions are similarly silent as to petitioners' theory for attacking those strikes. In any event, as the district court found and as set forth above, the government based its first four strikes on reasonable, racially neutral criteria. /5/ It is also worthy of note that the percentage representation of blacks among the jurors who actually heard petitioners' case (3 out of 12, or 25%) corresponded closely to the 27.4% representation of blacks in the jury pool (see Hearing Tr. 7). See generally Roman v. Abrams, 822 F.2d 214, 229 (2d Cir. 1987) (en banc). /6/ To the extent that United States v. Wilson, 853 F.2d 606 (8th Cir. 1988), and other cases that petitioners cite stand for that proposition, they announce a correct principle but are not remotely in conflict with the decision below. If petitioners mean to suggest that Wilson or any other case stands for the proposition that a standard of review less deferential than the "clearly erroneous" standard governs, then they present no issue meriting review by this Court, for the Court has already made clear in Batson that a deferential standard of review is appropriate. In any event, the reversal of the defendant's conviction in Wilson rested primarily on the district court's error of law in creating a presumption that the government exercised its challenges properly (see 853 F.2d at 609), an error that made it inappropriate to apply the "clearly erroneous" standard of review to the district court's findings of fact. No comparable error of law occurred in this case. /7/ There is no need to hold this petition pending the disposition of Tompkins v. Texas, No. 87-6405 (argued Dec. 6, 1988). The Batson issue in Tompkins relates primarily to the particular factual circumstances of that case (such as the prosecution's effort to justify a peremptory strike on the basis that the struck juror was an employee of the United States Postal Service). See generally 87-6405 Pet. Br. 29-46. Nothing in this Court's resolution of those fact-specific issues is at all likely to have any bearing on how a court should evaluate the strikes in this case, which were justified for reasons dissimilar to the challenged explanations in Tompkins. To the extent that the proper standard of appellate review is at issue in Tompkins, the petitioner in that case argues (id. at 46-50) for the Anderson v. City of Bessemer City standard but contends that the Texas Court of Criminal Appeals misapplied it. Here the court of appeals applied the Anderson standard (Pet. App. A6, A9) and, as we have shown, did so correctly. /8/ See also Brown v. North Carolina, 479 U.S. 940 (1986) (O'Connor, J., concurring in denial of certiorari) (Batson "depends upon this Nation's profound commitment to the ideal of racial equality" and does not extend to jurors' attitudes); Gray v. Mississippi, No. 85-5454 (May 18, 1987) (Powell, J., concurring) (decision in Batson "justified by the compelling need to remove all vestiges of invidious racial discrimination in the selection of jurors"). /9/ Petitioners also argue (Pet. 10) that this Court's decisions extending the protection of the Equal Protection Clause to gender-based classifications require the extension of Batson to gender-based peremptory challenges. As explained above, however, Batson cannot be separated from its justification in the need to eradicate racial discrimination. ##FN10 /10/ Indeed, here the effect of the prosecutor's peremptory challenges was to make the jury more representative, rather than less representative, of a fair cross-section of the community.