JOHN FULLER, PETITIONER V. UNITED STATES OF AMERICA No. 89-6215 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 Eighth Circuit Brief For The United States OPINION BELOW The opinion of the court of appeals (Pet. App. 2-10) is reported at 887 F.2d 144. JURISDICTION The judgement of the court of appeals was entered on October 5, 1989. The petition for a writ of certiorari was filed on December 4, 1989. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the Missouri offense of second degree burglary is a "violent felony" under the sentence enhancement provision of 18 U.S.C. 924(e)(1) and 924(e)(2)(B)(ii) (Supp. V. 1987). 2. Whether petitioner established a prima facie case of the government's discriminatory use of peremptory challenges under Batson v. Kentucky, 476 U.S. 79 (1986). STATEMENT 1. Petitioner was indicted in the Eastern District of Missouri on one count of possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. 922(g)(1) (Count 1), and one count of possession of an unregistered firearm, in violation of 26 U.S.C. 5681(d) (Count 2). The indictment alleged that petitioner had two previous convictions for second degree burglary under Missouri law, /1/ and one previous conviction for robbery, thus subjecting him to an enhanced sentence of a minimum term of 15 years' imprisonment under 18 U.S.C. 924(e)(1) (Supp. V 1987). /2/ Pet. App. 2-3, 9-10. Before trial, petitioner filed a motion seeking dismissal of the enhancement provision of Section 924(e)(1) in Count 1. Petitioner contended that his burglary convictions were not proper predicate offenses under that statute since the crimes did not involve actual or potential injury to others. The district court rejected that argument, concluding that (w)hile the term burglary may be capable of a number of definitions depending on the degree of the offense or the applicable statutory provision or common law, the conspicuous omission of any federal definition of burglary in Section 924(e) strongly suggests that Congress intended the term to have the meaning accorded to it by the laws of the jurisdiction in which the defendant's conviction arose. Pet. C.A. Br. Add. 8; see id. at 10. 2. During jury selection, the government used two of its six peremptory challenges to strike black venire members. Petitioner, who is black, used none of his 10 peremptory challenges to strike black venire members. Three black venire members were ultimately sworn in as jurors. Petitioner, however, objected to the panel, contending that the government had used its peremptory challenges purposefully to exclude black venire members, in violation of the Equal Protection Clause. The district court denied that objection, concluding that petitioner had not established a prima facie case of the government's discriminatory use of peremptory challenges under Batson v. Kentucky, 476 U.S. 79 (1986). Pet. App. 3; Gov't C.A. Br. 10. The jury convicted petitioner on both counts. The district court later sentenced petitioner to an enhanced term of 15 years' imprisonment under Section 924(e)(1) on Count 1, and a concurrent term of 10 years' imprisonment on Count 2. Pet. App. 3. 3. The court of appeals affirmed. Pet. App. 2-10. In the court of appeals, petitioner argued (Pet. C.A. Br. 13-16) that he had established a prima facie case of discrimination under Batson v. Kentucky, supra, because the government used two of its six peremptory challenges to strike black venire members. Petitioner therefore contended that the district court should have required the government to give race-neutral explanations for those strikes. The court of appeals observed that petitioner "relies solely on the exclusion of two out of five potential black jurors, presenting no other evidence leading to an inference of discrimination." Pet. App. 4. Since petitioner "point(ed) to no other facts or circumstances that would support the inference of a prima facie case," the court of appeals concluded that, under Batson, the district court did not "err() in not requiring the government to go forward with a neutral explanation." Id. at 5. Petitioner also argued (Pet. C.A. Br. 21-30) that Section 924(e) did not apply to his state burglary convictions because those offenses did not involve a serious potential risk of physical injury to another. The court of appeals rejected that argument, citing its recent decision in United States v. Portwood, 857 F.2d 1221 (8th Cir. 1988), cert. denied, 109 S. Ct. 2073 (1989). In Portwood, the court of appeals had addressed and rejected a claim identical to petitioner's, holding that Section 924(e) applies to any felony defined as "burglary" under state law (857 F.2d at 1223-1224). Pet. App. 9-10. /3/ ARGUMENT 1. Petitioner contends (Pet. 8-16) that burglary is a "violent felony" under the sentence enhancement provision of 18 U.S.C. 924(e)(1) and 924 (e)(2)(B)(ii) only where the particular burglary involves conduct that presents a serious risk of physical injury to another, or otherwise satisfies the common law definition of the offense. In Taylor v. United States, No. 88-7194, as petitioner points out, Pet. 15-16, this Court has granted certiorari to resolve the conflict among the circuits concerning the meaning of the term "burglary" under Section 924(e)(2)(B) (ii). In our submission to this Court in Taylor, /4/ we have described the conflicting decisions among the courts of appeals and have explained that the statutory reference to burglary is not limited either to common law burglary or to burglaries that pose a potential risk of physical injury. To the contrary, even though Congress failed to include an express definition of burglary in its most recent amendments to Section 924(e), Congress retained the generic definition of burglary that was contained in the predecessor Armed Career Criminal Act of 1984, 18 U.S.C. App. 1202(c)(9) (Supp. II 1984), a definition that reflects the prevailing modern view of the offense of burglary as defined in federal and state law. That interpretation is consistent with the language, legislative history, and purposes of the 1986 amendments to the Armed Career Criminal Act of 1984. Petitioner's Missouri burglary convictions therefore qualify as predicate crimes under Section 924(e)(2)(B)(ii), since those state offenses, by definition, require entering a building belonging to another for the purpose of committing a state or federal crime. See note 1, supra. Nevertheless, in these circumstances, we believe that the Court should hold the instant petition with respect to the first question presented pending the disposition of Taylor v. United States, No. 88-7194. 2. Petitioner also renews his contention (Pet. 17-19) that he had established a prima facie case of discrimination under Batson v. Kentucky, supra, because the government used two of its six peremptory challenges to strike black venire members. No court of appeals has held that the government's use of a slightly higher percentage of peremptory challenges against minority venire members, standing alone, establishes a prima facie case of discrimination under Batson. Rather, the circuits have followed this Court's directive that a defendant, in order to establish a prima facie case, must raise an inference, based on all of the available facts, that the government used its challenges in an intentionally discriminatory manner: In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a "pattern" of strikes against black jurors in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. Batson, 476 U.S. at 96-97. And those reviewing courts have been mindful of this Court's expression of confidence in trial judges' ability "to decide if the circumstances concerning the prosecutor's use of peremptory challenges create() a prima facie case of discrimination against black jurors." Id. at 97; see id. at 98 n.21. Accordingly, the Eighth Circuit and other courts of appeals have not hesitated to find that a defendant had established a prima facie case of intentional discrimination under Batson where the government had used its peremptory challenges to strike a substantial percentage of minority venire members. See, e.g., United States v. Battle, 836 F.2d 1084, 1085-1086 (8th Cir. 1987) (government used five of its six peremptory challenges to strike black venire members); United States v. Chalen, 812 F.2d 1302, 1312-1314 (10th Cir. 1987) (government used peremptory challenges to strike only remaining Native American venire member), cert. denied, 109 S. Ct. 534 (1988). But where, as here, the government challenged only a small percentage of minority venire members, and a significant number of minority members were sworn in as jurors, courts of appeals have correctly declined to second-guess a trial judge's determination that the defendant had not established a prima facie case of discrimination. See, e.g., United States v. Rogers, 850 F.2d 435, 437 (9th Cir. 1988) (government used three of seven peremptory challenges to strike black venire members; jury included two black members and one black alternate); United States v. Lewis, 837 F.2d 415, 416-417 (9th Cir.) (government used peremptory challenges to strike eight white venire members and one of two black venire members), cert. denied, 109 S. Ct. 304 (1988). In these circumstances, petitioner's fact-specific claim warrants no further review by this Court. CONCLUSION The petition for a writ of certiorari should be denied, except as to the first question presented in the petition. As to the first question, the petition should be held pending the disposition of Taylor v. United States, No. 88-7194, and disposed of as appropriate in light of that decision. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General ANDREW LEVCHUK Attorney FEBRUARY 1990 /1/ In December 1975 and in November 1980, petitioner was convicted of second degree burglary in the Missouri state courts. See Pet. 9. At the time he committed those crimes, second degree burglary in Missouri consisted of several distinct offenses, but generally involved unlawful entry into a building with the intent to commit a crime. See Mo. Rev. Stat. Sections 560.045, 560.050, 560.055, 560.060, 560.070, 560.075, 560.080 (1969) (repealed 1979). Petitioner conceded that his two convictions involved entries into buildings under Mo. Rev. Stat. 560.045. See Pet. 9-10; Pet. C.A. Br. 22-23. In 1979, Missouri repealed the separate definitions of second degree burglary. Missouri law currently defines that offense as "knowingly enter(ing) unlawfully or knowingly remain(ing) unlawfully in a building or inhabitable structure for the purpose of committing a crime therein." Mo. Rev. Stat. Section 569.170 (1986). /2/ The sentence enhancement provision of 18 U.S.C. 924(e)(1) applies to previously convicted felons who possess or receive a firearm in violation of 18 U.S.C. 922(g). Title 18, United States Code, Section 924(e)(1), provides in pertinent part: In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years * * *. Title 18, United States Code, Section 922(g)(1), refers to any "convict(ion) in any court of a crime punishable by imprisonment for a term exceeding one year." Title 18, United States Code, Section 924(e)(2)(B), provides: (T)he term "violent felony" means any crime punishable by imprisonment for a term exceeding one year that -- (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. /3/ The court of appeals also rejected petitioner's claims that the district court erred in admitting certain drug paraphernalia into evidence, Pet. App. 5-7, that his court-appointed attorney rendered ineffective assistance, id. at 7-8, and that the Sentencing Reform Act of 1984 was unconstitutional, id. at 8-9. Petitioner has not sought further review of those claims. /4/ See U.S. Br. 11-37. We have provided a copy of our brief in Taylor to counsel for petitioner in this case.