STEVEN ALLISON, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-1240

   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 Eleventh Circuit

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinion below
   Jurisdiction
   Statement
   Argument
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 7a-43a) is reported
at 908 F.2d 1531.

                             JURISDICTION

   The judgment of the court of appeals was entered on August 17,
1990.  A petition for rehearing was denied on November 8, 1990.  Pet.
App. 44a-45a.  The petition for a writ of certiorari was filed on
February 5, 1991.  The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the court of appeals correctly determined that petitioner
failed to establish a prima facie case of racial discrimination in the
government's exercise of its peremptory challenges.

                               STATEMENT

   Following a jury trial in the United States District Court for the
Middle District of Florida, petitioner was convicted of conspiracy to
possess and attempted possession of cocaine with intent to distribute
it, in violation of 21 U.S.C. 846.  He was sentenced to concurrent
terms of imprisonment for 120 months, to be followed by five years'
supervised release, and fined $5,000.  The court of appeals affirmed.
Pet. App. 7a-43a.

   1. Petitioner and his co-defendant are black.  For jury selection,
a 40-person venire was assembled.  The prosecutor exercised three of
his six peremptory challenges against black individuals and two
against white individuals;  one peremptory challenge was not used.
The impaneled jury included two black jurors, and one black served as
an alternate.  Pet. App. 25a, 34a-35a.

   After the prosecutor had challenged two black and two white jurors,
petitioner raised the issue whether the challenges to black jurors
were improper under Batson v. Kentucky, 476 U.S. 79 (1986).  The trial
court noted that it could require the prosecutor to explain those
strikes, but it did not do so at that time.  Jury selection continued,
and the prosecutor struck a third black juror.  At the conclusion of
jury selection, but before the selection of alternate jurors, the
court asked the prosecutor to give his reasons for challenging the
black jurors.  The prosecutor disclaimed any racial motivation for the
strikes, indicating that he had preferred other individuals for the
jury.  When the court asked the prosecutor to elaborate, the
prosecutor added:

         There are various reasons, your honor.  I can only allude to
      various factors which the courts go over.  They include
      education, family, background, type of employment, various
      aspects, age.  Those are all of the factors that I've included.
      I can't say one factor weighs over another one.  There's a lot
      of times, your honor, that it's just a reaction to the
      situation.

Pet. App. 27a-29a.

   Although petitioner challenged the adequacy of that statement of
reasons, he did not point to any factors suggesting that the
prosecutor's strikes were racially motivated.  In particular,
petitioner did not raise any claim that white jurors with essentially
similar characteristics as the struck black jurors were accepted by
the prosecutor, nor did petitioner contend that any comments of the
prosecutor during voir dire revealed racial bias.  Pet. App. 34a-35a
n.7.  The district court rejected petitioner's Batson claim.  In a
post-trial motion for a new trial, petitioner renewed his Batson
claim, but the court denied the motion without opinion.  Id. at
29a-30a & n.5.

   2. A divided court of appeals affirmed.  Petitioner contended that
the district court had implicitly found a prima facie case of Batson
violation, the facts supported such a finding, and the prosecutor's
explanations for his strikes of black jurors were inadequate.  Pet.
App. 26a.  The court of appeals found that petitioner had failed to
establish a prima facie case of purposeful discrimination, and it
therefore rejected his Batson claim.  Id. at 30a.

   The court noted that because the district court had not explained
its reasoning, it was not possible to tell whether the district court
had found the absence of a prima facie case or had credited the
prosecutor's explanations.  Pet. App. 29a-30a.  While recognizing that
the determination whether a prima facie case under Batson exists is
"ordinarily, if not always, (to) be made in the first instance by the
trial court," the court found that a remand was not required in this
particular case because the record was clear and it did not support
the existence of a prima facie case.  Id. at 30a.

   In support of that conclusion, the court stated that although not
dispositive, "the unchallenged presence of three blacks on the jury
undercuts any inference of impermissible discrimination that might
arise simply by the striking of other blacks," particularly since the
prosecutor had enough strikes to remove all of them.  Pet. App. 32a,
35a.  Moreover, the court explained that a defendant's burden to
establish a prima facie case cannot be carried by noting that some
black jurors were struck without obvious explanation;  some indicia of
discrimination are required.  Id. at 33a.  Petitioner, however, had
"pointed to nothing that strongly suggests racial motivation was the
basis for the strikes used." Id. at 34a.  The court also observed that
neither in the trial court nor on appeal had petitioner sought to
compare the general characteristics of the black jurors who were
excluded with the white jurors who were seated in an effort to
establish discrimination between similarly situated jurors.  Nor did
numerical considerations support an inference of discrimination,
because the percentage of blacks on the jury (including alternates)
exceeded their percentage on the venire.  Id. at 34a-35a.  In light of
those factors, the court rejected petitioner's Batson claim.  /1/

   Judge Hatchett dissented, arguing that petitioner had established a
prima facie case and that the prosecutor's explanations were not
sufficient.  Pet. App. 36a-43a.  Although agreeing with the majority
that factors such as the presence of blacks on the jury, the use of
some strikes against white jurors, the comparative percentages of
blacks on the venire and the jury, and the prosecutor's failure to
exhaust his strikes had "some relevance," he concluded that those
factors were not "controlling" and that other considerations here
favored the existence of a prima facie case.  Id. at 40a-41a.

                               ARGUMENT

   Petitioner contends (Pet. 10-30) that the court of appeals, in
rejecting his Batson claim, committed three errors:  it should have
remanded to the trial court for that court to determine whether
petitioner had established a prima facie case;  it shoud have
concluded that a prima facie case was made out on this record;  and it
should have found that the prosecutor's stated reasons for the
challenges were inadequate.

   1. 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." 475 U.S. at 96.  Only when the defendant has
made 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, the court of appeals concluded that petitioner's
showing did not rise to the level necessary to establish a prima facie
case of discrimination, and it was therefore unnecessary to evaluate
whether the prosecutor had given adequate, race-neutral explanations
for the strikes.  Contrary to petitioner's contention (Pet. 13-14),
the court of appeals did not violate Batson in evaluating the
sufficiency of petitioner's prima facie case rather than ordering a
remand.  It is unquestionably the primary responsibility of the trial
courts to implement Batson's commands, and to make timely
determinations on claims of discrimination when they are raised by a
defendant.  See Batson, 476 U.S. at 97;  see also Powers v. Ohio, No.
89-5011 (Apr. 1, 1991), slip op. 16 ("It remains for the trial courts
to develop rules, without unnecessary disruption of the jury selection
process, to permit legitimate and well-founded objections to the use
of peremptory challenges as a mask for race prejudice.").  But the
court of appeals recognized that principle here.  See Pet. App. 30a
("Batson contemplated that the determination of whether a prima facie
case * * * is established will ordinarily, if not always, be made in
the first instance by the trial court.").  The court simply concluded
that, although the trial court should have made an express finding on
the prima facie case issue, its failure to do so did not require a
time-consuming and purposeless remand when the record was sufficiently
developed for the court to determine the issue as a matter of law.
This was not a case in which findings of historical fact had to be
made before the sufficiency of petitioner's showing could be
evaluated.  Cf. Amadeo v. Zant, 486 U.S. 214 (1988).  Accordingly, the
court of appeals' pragmatic response to the question before it
constituted a sound use of judicial resources.  /2/

   To be sure, it would have been perfectly appropriate for the court
of appeals to remand for further proceedings if it had elected to do
so.  See 28 U.S.C. 2106.  But none of the cases cited by petitioner
(Pet. 14) holds that a court of appeals invariably must remand in a
Batson case, regardless of how pointless a remand would be.  /3/ And
Batson itself contains no such inflexible mandate.  See 476 U.S. at 99
("We decline * * * to formulate particular procedures to be followed
upon a defendant's timely objection to a prosecutor's challenges.").

   2. The court of appeals correctly held that petitioner failed to
establish a prima facie case.  Batson lays down no rigid rules in
evaluating the existence of a prima facie case;  rather, it directs
consideration of "all relevant circumstances." 476 U.S. at 96-97.  The
Court noted, as examples of evidence that could support a prima facie
case, the existence of a pattern of strikes against blacks, or
comments by the prosecutor during voir dire.  Id. at 97.  Petitioner
presented no satisfactory evidence of discrimination, either on the
factors identified by the Court in Batson, or on other factors that
have been identified by the courts in subsequent cases.

   To begin with, the prosecutor did not engage in a pattern of
strikes against blacks.  The prosecutor had exercised two peremptory
strikes against black jurors and two against white jurors when
petitioner initially noted his Batson objection;  after that
objection, the prosecutor struck another black juror, but the record
suggests that he may not have been aware of that juror's race.  See
Pet. App. 28a;  Gov't C.A. Br. 24-25.  Although the prosecutor had not
exhausted his challenges, and could have used them in a discriminatory
fashion if he had so desired, two black jurors were impaneled, as well
as one black alternate juror.  On comparable records, courts have had
no difficulty rejecting an inference of purposeful discrimination on
grounds of race.  /4/

   Despite having an opportunity to do so, petitioner did not come
forward with any other evidence to support his prima facie case of
discrimination.  Although petitioner makes a belated effort to suggest
the presence of discrimination by comparing the struck black jurors to
the accepted white jurors (see Pet. 19-22), in the trial court and in
the court of appeals petitioner made no such showing, see Pet. App.
34a n.7.  If the evidence had as much probative force as petitioner
now contends, it is difficult to understand why petitioner would have
remained silent about it throughout the proceedings below.

   Finally, petitioner claims that the prosecutor's statements to the
trial judge, made after petitioner had raised his Batson objection,
somehow revealed a discriminatory intent.  That argument is without
merit.  First, nothing in the prosecutor's statements remotely
indicates an intent to discriminate;  to the contrary, the prosecutor
affirmed that his challenges rested on such neutral criteria as
education, family background, employment, and age.  Second, the proper
focus, in determining whether a prima facie case exists, is not on
what the prosecutor says after the defendant makes a Batson objection
and the court requests an explanation;  rather, because there must be
a prima facie case before any explanation is required, the proper
focus is on the prosecutor's conduct and his comments in the course of
jury selection itself.  As to that process, petitioner has offered
nothing that casts doubt on the race-neutrality of the prosecutor's
motives.  /5/

   3. Finally, petitioner's contention (Pet. 25-30) that the
prosecutor's explanation was insufficient does not warrant this
Court's review because that issue is not presented on this record and
was not decided by the court of appeals.  Where no prima facie case is
made out, no inquiry into discriminatory motive is required.
Therefore, the prosecutor's failure to provide a clear and specific
explanation for his challenges would not be a ground for relief.  Only
if the defendant carries his burden to establish a prima facie case --
thereby raising an inference of discrimination -- does the burden
shift to the prosecution to articulate reasons.  Because the court of
appeals correctly held that petitioner did not carry that burden, the
judgment does not depend on whether the prosecutor's reasons would
pass a strict Batson analysis.  United States v. Walton, 908 F.2d
1289, 1298 (6th Cir. 1990).

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Assistant Attorney General

   MERVYN HAMBURG

      Attorney

   APRIL 1991

   /1/ The majority opinion noted that one of the panel members, Judge
Bright, "would add that the prosecutor gave an explanation which the
trial judge impliedly deemed satisfactory and that the whole record,
including the prosecutor's explanation, indicates the absence of
racial animus." Pet. App. 35a-36a n.9.

   /2/ Unlike the ultimate question whether the prosecutor has engaged
in intentional discrimination, which is a question of fact that
largely turns on credibility, see Batson, 476 U.S. at 98 n.21, the
existence of a prima facie case is better characterized as a mixed
question of fact and law.  Although trial courts are, in general,
better situated to evaluate the prima facie case issue, particular
situations -- such as the present case -- involve clear enough fact
patterns to enable a reviewing court to determine the issue as a
matter of law.  Cf. Pullman Standard v. Swint, 456 U.S. 273, 289 n.19
(1982).

   /3/ In two of the cases, the courts of appeals remanded because the
trials had occurred before Batson, and there were no sufficient
district court proceedings.  See United States v. David, 803 F.2d 1567
(11th Cir. 1986);  United States v. Allen, 814 F.2d 977 (4th Cir.
1987).  In one of the cases, the court of appeals found a prima facie
case, then remanded for the prosecutor to provide explanations.
United States v. Johnson, 873 F.2d 1137 (8th Cir. 1989).  And in the
remaining cases, the court either remanded for a new trial upon
finding a Batson violation, Harrison v. Ryan, 909 F.2d 84 (3d Cir.
1990), or affirmed the conviction after rejecting a Batson objection,
United States v. Ruiz, 894 F.2d 501, 506 (2d Cir. 1990).

   /4/ See, e.g., United States v. Dawn, 897 F.2d 1444, 1448 (8th
Cir.) (government used six of seven peremptory challenges to strike
blacks;  jury included two blacks), cert. denied, 111 S. Ct. 389
(1990);  United States v. Moore, 895 F.2d 484, 486 (8th Cir. 1990)
(government used four of six peremptory challenges to strike blacks;
three blacks sat on the jury);  United States v. Grandison, 885 F.2d
143 (4th Cir. 1989) (government used six of nine peremptory challenges
to strike blacks;  two blacks sat on the jury and three blacks served
as alternates), cert. denied, 110 S. Ct. 2178 (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).

   /5/ Contrary to petitioner's contention (Pet. 23-24), United States
v. Lewis, 837 F.2d 415, 417 (9th Cir. 1988), does not hold that the
prosecutor's statements made in explanation are relevant to the
existence of a prima facie case;  rather, the court merely accepted
that contention for the sake of argument, and found that the
particular explanations were race-neutral.  Nor did United States v.
Clemmons, 892 F.2d 1153, 1156 (3d Cir. 1989), cert. denied, 110 S. Ct.
2623 (1990), find such statements relevant to the prima facie case.
The court said only that "(i)f the prosecutor's explanation raises
more concern that it puts to rest, courts cannot effectively close
their eyes to that fact by simply deciding that the defendant has not
made out a prima facie case." 892 F.2d at 1156.  Unlike the
explanation in Clemmons (that the prosecutor struck a black juror
because the juror was Hindu), the explanation here did not raise
additional concerns.  See Pet. App. 35a n.9.