DAVID D. PRINE, PETITIONER V. UNITED STATES OF AMERICA;

   MICHAEL D. FREEMAN, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-6212, No. 90-6218

   In The Supreme Court Of The United States

   October Term, 1990

   On Petitions For A Writ Of Certiorari To The United States Court Of
Appeals For The Eighth Circuit

   Brief For The United States In Opposition

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. B) /1/ is reported
at 909 F.2d 1109.

                             JURISDICTION

   The judgment of the court of appeals was entered on July 18, 1990.
A petition for rehearing was denied on August 21, 1990 (Pet. App. A).
The petitions for writs of certiorari were filed on November 13, 1990.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether the court of appeals erred in holding that the
prosecutor's exercise of a peremptory challenge against a black
potential juror did not violate the rule anounced in Batson v.
Kentucky, 476 U.S. 87 (1986).

   2. Whether the evidence was sufficient to support petitioner
Prine's convictions.

                               STATEMENT

   After two joint jury trials in the United States District Court for
the Southern District of Iowa, petitioners were convicted of
conspiracy to manufacture marijuana, in violation of 21 U.S.C. 846,
manufacturing marijuana, in violation of 21 U.S.C. 841(a)(1), and use
of firearms in relation to a drug offense, in violation of 18 U.S.C.
924(c).  Petitioner Freeman was sentenced to consecutive terms of 12
months' imprisonment on the marijuana counts and 60 months'
imprisonment on the firearms count, to be followed by 140 hours of
community service;  petitioner Prine was sentenced to consecutive
terms of 30 months' imprisonment on the marijuana counts and 60
months' imprisonment on the firearms count, to be followed by 160
hours of community service.  The court of appeals affirmed
petitioners' convictions, but remanded for resentencing (Pet. App. B).
 /2/

   1. The facts are summarized in the court of appeals opinion (Pet.
App. B2-B3).  After receiving a tip that marijuana was being grown on
property owned by petitioner Freeman's father near Bondurant, Iowa,
law enforcement officers posing as neighbors commenced surveillance of
the property.  During their surveillance, the officers observed
petitioner Prine leaving the property on two occasions and observed
petitioner Freeman on the property on one occasion.  In addition,
petitioner Freeman told the undercover officers that he visited the
property nearly every day.  Pet. App. B2.

   On September 13, 1988, officers arrived at the property and saw a
station wagon parked at the entrance of the path leading to the
marijuana patch.  One of the officers looked through the windows of
the station wagon to check for weapons, but did not see any.
Petitioners were observed tending the marijuana patch.  As they walked
from the marijuana patch towards the station wagon, petitioners were
arrested.  When arrested, petitioner Freeman had a loaded .38 caliber
revolver on his person.  Petitioner Prine was arrested as he was
standing next to the station wagon.  The rear door to the station
wagon was open, and officers found a loaded .22 caliber pistol and a
knife on the floor of the station wagon, next to the place where
petitioner Prine stood.  Following petitioners' arrests, officers
seized 28 marijuana plants from the property.  Pet. App. B2-B3.

   2. At their first trial, petitioners were each convicted of both
marijuana charges and the firearms charge.  Finding that the
prosecutor had improperly commented on the fact that petitioners had
not testified, the district court granted a new trial on the firearms
charge.  The court ruled, however, that the comment did not affect
petitioners' marijuana convictions and, accordingly, left those
convictions undisturbed.  Pet. App. B3-B4.  /3/

   Petitioners were retried on the firearms count alone.  During jury
selection, the government exercised its peremptory challenges to
remove six potential jurors:  four white, one Hispanic, and one black.
 The black potential juror was the sole black on the venire, and her
removal resulted in empaneling an all-white jury.  Petitioners are
white, as was petitioner Prine's counsel;  petitioner Freeman's
counsel was black. Pet. App. B4.

   Based on these circumstances, petitioners' counsel argued that the
government's use of its peremptory challenge to remove the sole black
potential juror constituted prima facie evidence of racial
discrimination, thereby requiring the government to offer a racially
neutral reason for its strike.  The prosecutor responded that
petitioners had failed to establish a prima facie case;  however,
after preserving the argument that no prima facie case was
established, the prosecutor volunteered an explanation for her strike
of the black juror.  Pet. App. C66-C68.

   The prosecutor explained that in drug prosecutions, once
prospective jurors with "obvious problems" are removed, she regularly
attempts "to eliminate young, single people who have never been
married and who are without children." Pet. App. C68.  According to
the prosecutor, she applies that practice for two reasons.  First,
"individuals who are young, unmarried and don't have children are more
likely to be out in the social setting" where drugs "are very
prevalent" and therefore might have "a complacent * * * view towards
the use of drugs in our community." Id. at C68-C69.  Second, "younger
people are generally more liberal in their thinking, and they do not
make as good jurors as people who are a little older and more stable."
Id. at C69.

   As the prosecutor noted, the black juror was 33 years of age and,
although "she does have children, * * * she is single and more likely
to be out in the social setting." Pet. App. C69.  The prosecutor
further explained that her reasons for striking the black juror were
consistent with her reasons for striking other prospective jurors:
apart from her first three strikes that were exercised for "some very
specific reason," the prosecutor stated that she removed two other
jurors and an alternate juror because they were young, single, and
might have an exposure to drugs that would not likely be present with
older jurors.  Ibid.  In particular, the prosecutor stated that her
non-specific strikes were used to remove a 27 year old, single,
Hispanic male;  a 26 year old, single, white woman;  and a 24 year
old, single, white male.  Ibid.

   The district court ruled that a prima facie case had not been
established under the particular circumstances of this case.  In light
of that ruling, the district court found no need to consider the
adequacy of the prosecutor's proffered explanation for her challenge
of the black juror.  Pet. App. C67-C68;  Gov't C.A. App. 66.

   3. The court of appeals affirmed petitioners' convictions.  It
first held that even though petitioners are white and the excluded
prospective juror is black, "defendants of any race have standing in
their own trial to challenge a juror's exclusion on equal protection
grounds." Pet. App. B7.  The court further stated that "the striking
of a single black juror for racial reasons violates the equal
protection clause." Id. at B8.  The court nonetheless rejected
petitioners' claim under Batson v. Kentucky, 476 U.S. 87 (1986).

   Based on its review of the record, the court was convinced that the
district judge's determination that no prima facie case of
discrimination had been established was not clearly erroneous. Pet.
App. B8.  The court also went on to state that the reasons offered by
the prosecutor and "the composition of the panel ultimately selected
(which included older and/or married persons)" supported the district
judge's determination that no equal protection violation occurred.
Ibid.

   The court of appeals also rejected summarily petitioner Prine's
claim that the evidence was insufficient to support his convictions.
Pet. App. B8.

                               ARGUMENT

   1. Petitioners contend (Prine Pet. 7-10;  Freeman Pet. 5-9) that
the courts below erred in rejecting their claim that the prosecutor
violated Batson in exercising a peremptory challenge to remove the
only black prospective juror on the venire.  That contention lacks
merit, and petitioners do not assert a conflict with the decision of
any other court of appeals.  Review by this Court is therefore
unwarranted.

   a. 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." 476 U.S. at 96.  If the defendant makes such a
prima facie showing, "the burden shifts to the (prosecutor) to come
forward with a neutral explanation for challenging black jurors." Id.
at 97.

   In this case, the prosecutor denied that any prima facie case was
established based on her strike of the only black juror on the panel,
and the district court and court of appeals accepted that contention.
But the prosecutor also provided a detailed explanation of her reasons
for exercising the peremptory strike, and her reasons made clear that
the strike was not based on racial grounds.  In that context,
petitioners' contentions regarding the sufficiency of their prima
facie showing are largely beside the point.  The purpose of the prima
facie inquiry is to determine whether the prosecutor must explain the
reasons for exercising particular peremptory challenges.  In this
case, the prosecutor did so, and the court of appeals found her
explanations to be both credible and 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).  /4/

   As required by Batson, the prosecutor offered an explanation for
the peremptory strike exercised against the black juror that was
clear, specific, race-neutral, and related to the particular case to
be tried.  See Batson, 476 U.S. at 98 & n.20.  The prosecutor further
explained that two other jurors and one alternate juror -- none of
whom were black -- were removed for similar reasons.  See United
States v.  Johnson, 905 F.2d 222 (8th Cir. 1990).

   As the prosecutor stated, she followed a customary practice in drug
cases of removing jurors who were young, single, and childless.  The
rationale for removing such jurors, she explained, is to produce a
jury that is older, more mature, more conservative, and less likely to
travel in a social milieu in which drug usage is tolerated.  The
prosecutor explained that the excluded black juror -- like the other
similarly situated jurors who were excluded -- was removed because
"she (wa)s single and more likely to be out in the social setting" in
which drugs are prevalent and tolerated.  Pet. App. C69.  Prosecutors
may properly exercise their peremptory challenges based on
considerations of youthfulness and marital status, because it is
legitimate for prosecutors both to prefer jurors who are more mature
and experienced, /5/ and to exclude jurors who might harbor sympathy
for the accused because of demographic similarities.  /6/

   Reviewing the record, the court of appeals concluded that the
prosecutor's explanation was both racially-neutral and credible
because the composition of the jury that the prosecutor accepted
corroborated her jury-selection strategy:  it generally consisted of
older and married persons.  /7/ Pet. App. A8.  There is no merit to
petitioner's contention (Prine Pet. 8) that the explanation offered by
the prosecutor was necessarily pretextual because, unlike the other
jurors excluded for demographic reasons, the black potential juror was
a parent.  As the record shows, that juror was, like the other
demographically excluded jurors, relatively young and single, and the
prosecutor stated that it was her unmarried status that ultimately
prompted the strike;  the prosecutor's reason was that an unmarried
person would be more likely to be part of a social setting in which a
permissive attitude about drugs prevailed.  Although such a rationale
might not satisfy the requirements of a challenge for cause, Batson
"emphasize(d) that the prosecutor's explanation need not rise to the
level justifying exercise of a challenge for cause." 476 U.S. at 97.
Evaluated under the standards of race-neutrality mandated by Batson,
the prosecutor's explanation was sufficient.  /8/

   b. Petitioners' challenges to the district court's rejection of
their prima facie showing are also without merit.

   First, petitioners suggest (Prine Pet. 9;  Freeman Pet. 5-7) that
the district court based its finding that no prima facie case existed
on the fact that petitioners, as white defendants, had no standing to
contest the exclusion of a black prospective juror.  Petitioners are
incorrect.  The district court did not rest its ruling on that basis.
See Pet. App. C67-C68;  Gov't C.A. App. 66.  Rather, the district
court merely stated that there was nothing in the circumstances of the
jury selection process that would indicate that the prosecutor
employed her peremptory challenge for a racially discriminatory
reason.  For its part, the court of appeals specifically rejected the
view that petitioners lacked standing to contest the prosecutor's
removal of the black juror.  Pet. App. B7.  Instead, the court
explicitly accorded petitioners standing to assert their Batson claim.
 Accordingly, this case does not present the question whether white
defendants can challenge the exclusion of black jurors under Batson
that is before the Court in Powers v. Ohio, No. 89-5011 (argued
October 9, 1991).

   Second, petitioner Freeman contends (Freeman Pet. 3, 5) that the
district court's rejection of his prima facie case denied him the
opportunity to challenge the prosecutor's explanation in this case as
being pretextual.  The record refutes that assertion.  After the
prosecutor offered her reasons, the following colloquy ensued:

   THE COURT:  Okay.  Anything further at this time?

         (PETITIONER'S COUNSEL):  No, Your Honor.  Nothing, except the
      record speaks for itself.  I think (the excluded juror)
      indicated she had two kids, 17 and some other age, and that also
      she worked for the Department of Revenue.  I just find that
      awful puzzling, but I think we have made our record, Your Honor.

   THE COURT:  I think you have made your record.  * * * Gov't C.A.
App. 70 (emphasis added).  If petitioner had more evidence to offer,
he had the opportunity to present it.

   Finally, petitioner Freeman contends (Freeman Pet. 8) that there
was no evidence to support the district court's finding that a prima
facie case was not made out on this record.  That fact-bound claim
does not warrant this Court's attention.  It is also incorrect.  In
this case, petitioners provided no support for challenging the
prosecutor's action but for the fact that the excluded juror is black.
 The Court in Batson 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 (emphasis added).
Relevant factors may include "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.  Here, there was nothing in voir dire to support an
inference of discriminatory intent, the defendants are white and the
crime has no racial overtones, and the prosecutor did not exercise her
peremptory challenge against the black juror until she had used up
five other strikes.  Those circumstances fully justify the district
court's finding that there was no prima facie case of purposeful
discrimination.

   2. Petitioner Prine contends (Prine Pet. 11-17) that the evidence
was insufficient to support his convictions.  Viewed in the light most
favorable to the government, the evidence was sufficient.

   Prine argues that the evidence failed to establish that he either
manufactured marijuana or participated in a conspiracy to do so.  His
contention is unpersuasive.  At the initial trial, Prine stipulated to
"any and all witnesses' testimony with regard to the marijuana" and to
"the existence of any and all marijuana" seized on the Freeman farm.
Gov't C.A. App. 30-31.  In particular, the stipulated evidence showed
that officers saw 30 to 50 well-cultivated marijuana plants growing on
the Freeman farm during August 1988;  that the officers observed Prine
leaving the farm by automobile on one of these occasions and observed
Prine's car at the farm on another occasion;  that officers observed
Prine, in the company of Freeman, measuring and watering the marijuana
plants on September 13, 1988;  and that 28 plants weighing a total of
60 pounds were seized from the farm immediately after Prine and
Freeman were arrested as they walked from the marijuana patch.  Id. at
3743.  That evidence was ample to support Prine's drug convictions.
/9/

   There was also sufficient evidence presented at the second trial to
show that petitioner Prine used or carried a firearm in relation to a
drug trafficking crime.  Liability under Section 924(c) "does not
depend on proof that the defendant had actual possession of the weapon
or used it in any affirmative manner," but only that "the firearm was
available to provide protection to the defendant in connection with
his engagement in drug trafficking." United States v. Raborn, 872 F.2d
589, 595 (5th Cir. 1989).  That requirement was satisfied here.

   The officers visually inspected Freeman's station wagon when they
arrived at the farm, but saw no firearms in the station wagon.  When
petitioners emerged from the marijuana patch, Freeman was arrested and
a firearm found on his person.  Prine was arrested as he stood at an
open rear door of the station wagon, with a holstered .22 caliber
pistol resting nearby on the car's floorboards.  In those
circumstances, the jury could reasonably have inferred that Prine --
like Freeman -- "used" or "carried" a firearm for protection in
relation to his on-going cultivation of the nearby marijuana crop.
See United States v. Garrett, 903 F.2d 1105, 1111 & n.7 (7th Cir.
1990) (collecting cases, and holding that the evidence was sufficient
under Section 924(c) where defendant was attempting to open door of
car in which a firearm and drugs were present);  United States v.
Rosado, 866 F.2d 967, 969-970 (7th Cir.) (evidence sufficient under
Section 924(c) where weapon was placed in car parked near scene of
planned drug transaction), cert. denied, 110 S. Ct. 117 (1989).

                              CONCLUSION

   The petitions for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Assistant Attorney General

   ROBERT J. ERICKSON

      Attorney

   FEBRUARY 1991

   /1/ Unless otherwise noted, "Pet. App." refers to the appendix to
petitioner Freeman's petition, No. 90-6218.

   /2/ Because fewer than 50 marijuana plants were involved in this
case, the district court had, in determining the offense levels for
petitioners' marijuana offenses, applied the Drug Equivalency Table in
Sentencing Guideline Section 2D1.1 to convert the number of plants
involved into weight by use of a fixed conversion ratio.  The court of
appeals ruled that the district court should have determined the
offense level based on the actual weight of the marijuana plants
involved.  Pet. App. B9-B10.

   /3/ The court of appeals affirmed that ruling, Pet. App. B6, and
petitioners do not challenge it in this Court.

   /4/ Petitioner Prine errs in contending (Pet. 10) that a Batson
violation occurs based on the exclusion of a black juror
"notwithstanding the Prosecutor's reason for it." The purpose of
Batson is to prevent racially motivated strikes of black jurors;  it
does not immunize black jurors from peremptory challenges based on
nonracial grounds.

   /5/ 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. Davis, 871 F.2d
71, 72-73 (8th Cir. 1989);  United States v. Lance, 853 F.2d 1177,
1180-1181 (5th Cir. 1988);  United States v. Clemons, 843 F.2d 741,
748 (3d Cir.), cert. denied, 488 U.S. 835 (1988).

   /6/ See United States v. Garrison, 849 F.2d 103, 105 (4th Cir.),
cert. denied, 488 U.S. 835 (1988);  United States v. McCoy, 848 F.2d
743, 745 (6th Cir. 1988).

   /7/ Although the court of appeals initially focused on the
prima-facie-case issue, Pet. App. B8, its subsequent analysis dealt
not only with that issue, but also with the adequacy of the
prosecutor's explanations.  The court discussed the reasons
articulated by the prosecutor for her strike, and concluded that
"(t)hese reasons, and the composition of the jury ultimately selected"
supported "the district court's finding that no equal protection
violation occurred." Ibid.

   /8/ The petitions should not be held for the Court's disposition of
Hernandez v. New York, No. 89-7645 (to be argued Feb. 25, 1991).
Although Hernandez presents 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 explanations, the explanation offered here is quite
different from those involved in Hernandez and would be sufficient
under any standard of review.

   /9/ As the court of appeals noted (Pet. App. B3), Prine's counsel
conceded in his summation during the initial trial that Prine had
"essentially and effectively * * * admitted possession of the
marijuana." In addition, at the second trial on the firearms count,
Prine admitted during his testimony that he and Freeman were partners
in a marijuana-growing venture.  Gov't C.A. App. 137-143.