ISAAC JAMES TINDLE, PETITIONER V. UNITED STATES OF AMERICA
   No. 88-1379
   In the Supreme Court of the United States
   October Term, 1988
   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Fourth Circuit
   Brief for the United States in Opposition
            TABLE OF CONTENTS
   Questions Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion
                            OPINIONS BELOW
   The opinion of the court of appeals (Pet. App. 1a-19a) is reported
at 860 F.2d 125.  A prior opinion of the court of appeals (Pet. App.
20a-37a) is reported at 808 F.2d 319.
                             JURISDICTION
   The judgment of the court of appeals was entered on October 25,
1988.  A petition for rehearing was denied on December 20, 1988.  Pet.
App. 38a-39a.  The petition for a writ of certiorari was filed on
February 17, 1989.  The jurisidiction of this Court is invoked under
28 U.S.C. 1254(1).
                          QUESTIONS PRESENTED
   1. Whether the government impermissibly used peremptory challenges
against black prospective jurors, or the district court used improper
procedures to evaluate the propriety of those challenges.
   2. Whether petitioner was entitled to an entrapment instruction.
                               STATEMENT
   Following a jury trial in the United States Distrit Court for the
District of Maryland, petitioner was convicted on one count of
conspiring to possess and distribute heroin, in violation of 21 U.S.C.
846;  on four counts of distributing heroin, in violation of 21 U.S.C.
841;  and on one count of using a telephone to facilitate a narcotics
conspiracy, in violation of 21 U.S.C. 843(b).  Petitioner was
acquitted on a charge of conducting a continuing criminal enterprise,
in violation of 21 U.S.C. 848.  Petitioner was sentenced to a total of
50 years' imprisonment, a special parole term of ten years, and a fine
of $150,000.  Pet. App. 21a.
   1. The evidence at trial showed that, between late 1976 and 1983,
petitioner ran a "highly sophisticated and extensive" heroin operation
in the District of Columbia.  The operation generated large sums of
money and was accompanied by widespread violence.  Pet. App. 3a, 22a.
Documentary and financial evidence showed that petitioner had a lavish
lifestyle made possible by his involvement with heroin.  Id. at 22a.
Assisted by his attorney, petitioner laundered the proceeds of his
heroin operation.  Among other things, petitioner entered into sham
real estate transactions and falsely reported a large amount of income
from gambling.  While purportedly working as a gas station attendant,
petitioner spent several hundred thousand dollars annually.  Id. at
22a-23a.
   2. During jury selection, petitioner was allowed 13 preemptory
challenges, and the government was granted six.  The trial judge
conducted voir dire of the venire and then permitted the attorneys to
leave the courtroom to determine how to exercise their peremptory
challenges.  After several strikes for cause were granted, there
remained a total of 31 persons on the venire, and each side exercised
all of its allotted peremptory challenges.  Of its six peremptory
challenges, the government used five to strike black jurors, and the
jury that ultimately tried petitioner was entirely white.  Pet. App.
3a.
   At the close of the evidence, petitioner sought an entrapment
instruction on three of the four heroin distribution counts.  The
district court gave that instruction as to one of those counts but
denied it as to the other two counts.  Pet. App. 35a-36a.  The court
found that petitioner's own testimony as to those counts was entirely
inconsistent with the assertion of an entrapment defense.  Id. at
40a-48a.
   3. In an opinion by Judge Murnaghan, the court of appeals rejected
most of petitioner's arguments on appeal, but remanded for further
proceedings to determine whether the government's use of peremptory
challenges violated the Constitution as construed in Batson v.
Kentucky, 476 U.S. 79 (1986), which had been decided after
petitioner's trial.  Pet. App. 20a-37a.  Although the court of appeals
unanimously rejected petitioner's argument that he was entitled to an
entrapment instruction, it did so on grounds different from those
given by the district court.  The court of appeals held that
petitioner "starkly failed to make a showing" of either inducement by
the government or lack of predisposition to commit the charged crimes;
 petitioner therefore did not satisfy his burden of production with
regard to either of the two prerequisites for raising an entrapment
defense.  Id. at 36a.
   4. a. On remand, the district court considered petitioner's claim
that the government had exercised its peremptory challenges in a
discriminatory manner.  After concluding that petitioner had
established a prima facie case of racial discrimination, the court
gave the government an opportunity to offer racially neutral
explanations for challenging each of the five black potential jurors.
Pet. App. 4a.
   The government's attorneys and case agent explained the strategy
that they had used in selecting the jury and making their peremptory
challenges.  They submitted both public explanations of the strikes
and in camera materials, including notes that the government had used
in the selection of the jury and other sensitive information on which
the government had relied.  The government observed that the material
that was submitted in camera, if made public, could embarrass and even
endanger certain individuals, including members of the venire, and
that some of the information was work product.  Pet. App. 4a-5a.  The
sensitivity of the in camera materials related, in part, to certain
threats and attempted intimidation fostered by petitioner.  C.A. App.
137;  see also id. at 105-111 (letter from "a concerned citizen"
threatening the district judge.
   The government's public materials included an affidavit of the case
agent, Lt. William Merritt of the Washington Metropolitan Police
Department.  Merritt was present at the prosecution table throughout
the trial, and he participated with government attorneys in selecting
the jury and determining how the peremptory challenges would be
exercised.  Lt. Merritt is black and was a 20-year veteran of the
Metropolitan Police Department at the time of his affidavit.  He swore
that race was never mentioned as a factor in the exercise of the
government's peremptory challenges and that he agreed with the
challenges as exercised.  Merritt further affirmed that he would not
be a party to any effort to use race as a factor to eliminate black
jurors.  Merritt then proceeded to explain the specific reasons behind
most of the government's peremptory challenges.  Pet. App. 4a;  C.A.
App. 98-103, 132.
   Merritt's and the prosecutors' evidence showed that one of the five
black potential jurors, Veronica Bell, was struck because of her
employment at a shopping mall long associated by law enforcement
officers with narcotics trafficking, and because she had been seen,
during jury selection, conversing with individuals associated with
petitioner's co-defendant.  Pet. App. 5a-6a;  C.A. App. 127.  Another
juror, Arlene Granderson, was struck because her name closely
resembled that of Anthony Grandison, who was on trial in a
much-publicized case at the same time as petitioner in the same
courthouse.  During an earlier trial prosecuted by the same Assistant
United States Attorney who was prosecuting petitioner, Grandison had
arranged the murder of two witnesses who were to testify in his
narcotics prosecution.  Pet. App. 6a;  C.A. App. 87-88, 101, 127-128,
319-320.  /1/ Another juror, Riley Brothers, was struck because he
resided in "a community rampant with narcotics and related crimes"
where petitioner "had numerous friends and business associates as
reflected by the pen registers and other investigative measures in the
case." C.A. App. 101.  Brothers also closely resembled in size and
appearance petitioner's co-defendant Charles Eric Gladden, a large man
who had been described as a "muscleman" in petitioner's organization.
Counsel for Gladden had contended that his client had been mistakenly
identified and was being prosecuted solely because of his size.  Pet.
App. 6a;  C.A. App. 128, 201-202.
   After striking a white potential juror, the government used its two
final peremptory challenges to strike two more blacks.  At the time it
struck the first of those potential jurors, Walter Johnson, the
government was not aware of his race (Pet. App. 6a-7a).  /2/
Government counsel had no clear recollection of this particular juror,
but believed he was struck because it was thought that he was not
regularly employed.  It was also thought that he had intermittently
worked in an area where petitioner's narcotics operation was
conducted.  Pet. App. 6a-7a;  C.A. App. 129.  /3/ The government's
final peremptory strike was exercised because the potential juror,
John Smallwood, was a horse trainer.  Two government witnesses were
horse trainers, and both admitted being involved in illegal activities
with petitioner.  The government feared that this last juror, as a
horse trainer, would be contemptuous of those witnesses and would
reject their testimony.  Pet. App. 7a;  C.A. App. 129.
   b. In a lengthy opinion (C.A. App. 120-142), the district court
found that the government had articulated a neutral explanation for
each of the peremptory challenges.  The court held that those
explanations were clear, were reasonably specific, and met the
prosecution's burden under Batson of rebutting petitioner's prima
facie case.
   In determining whether the government's stated reasons were
pretextual, the district court noted:
      Quite obviously, the trial court in a proceeding such as this
      one must do more than merely accept at face value the
      explanations given by the prosecutors for their strikes.  What
      must be decided is whether bonafide reasons have been advanced
      by the prosecutors or whether the explanations are mere sham
      excuses proffered to avoid admitting acts of racial
      discrimination. * * *
         The facts of this particular case compel a very close
      examination of the reasons advanced by the government for
      exercising its peremptory strikes.  A black defendant was tried
      in this case by an all white jury, and the government exercised
      five of its six strikes to remove all black persons from the
      jury.
   C.A. App. 130-131.  On the basis of such exacting scrutiny, the
district court concluded that the government's explanations were not
pretextual.  Pet. App. 5a;  C.A. App. 131-135.  The court observed
that the government would have had little interest in striking black
jurors in this particular case, since most of petitioner's victims
were black, and 17 black witnesses, including a number of black law
enforcement officers, were called to testify on behalf of the
government at trial.  Id. at 132.  The court also observed:
      (T)he in camera submission of the government fully supports its
      contention that its reasons for exercising the strikes in
      question were not pretextual.  This submission includes, inter
      alia, a copy of the jury list used by government counsel with
      contemporary notes made by the prosecutors alongside each of the
      jurors listed.  Close examination of these notes reveals that
      the reasons given by government counsel for these strikes were
      not pretextual.  The notations made contemporaneously with the
      exercise of the strikes in question fully support the
      explanations given by government counsel for exercising these
      peremptory strikes.
   Id. at 133.  Finally, the court took special note of the statements
of Lt. Merritt.  Id. at 132.  /4/
   The district court also rejected petitioner's claim that he should
be granted access to the government's in camera submission.  The court
found that the submission "included extremely sensitive matters as
well as work product materials of the government attorneys.  Portions
of the sensitive materials submitted relate to threats and attempted
intimidation fostered by (petitioner) himself." C.A. App. 137.  The
court also found that "(o)ther portions relate to notes made by
government counsel on the jury list itself which reveal strategy
employed by government counsel during the trial of the case.  Were the
Court to permit counsel for (petitioner) to have access to the in
camera submission and were a new trial to be then ordered,
(petitioner) would have access to materials to which he would not
otherwise be entitled * * *." Id. at 137-138.  The district court
concluded by holding that an evidentiary hearing was unnecessary "in a
case such as this one in which a full record has been developed by way
of affidavits and exhibits and in which the record adequately
establishes that the government's reasons for exercising its
peremptory strikes were not pretextual." Id. at 142.
   5. The court of appeals affirmed.  Pet. App. 1a-19a.  The court
first held that the district court's factual findings that the
government had adequately set forth neutral, non-pretextual
explanations for each of its peremptory challenges were not clearly
erroneous.  Pet. App. 7a.  The court further held that the district
court did not abuse its discretion in refusing to conduct "a trial
within a trial" (id. at 10a) by holding a lengthy evidentiary hearing
on the Batson claim.  While recognizing that district courts are free
to hold evidentiary hearings when the circumstances so warrant, the
court of appeals observed that Batson does not mandate that an
evidentiary hearing be held in every case.  Id. at 8a-10a.
   Finally, the court rejected petitioner's claim that he was entitled
to examine the government's ex parte submission.  The court quoted
with approval (Pet. App. 11a-12a) from its own prior decision in
United States v. Garrison, 849 F.2d 103, 106-107 (4th Cir.), cert.
denied, 109 S. Ct. 56 (1988).  In Garrison, the court had "agree(d)
with the Ninth Circuit that the important rights guaranteed by Batson
deserve the full protection of the adversarial process except where
compelling reasons requiring secrecy are shown." 849 F.2d at 106
(citing United States v. Thompson, 827 F.2d 1254, 1258-1259 (9th Cir.
1987)).  Citing the district court's opinion, the court of appeals
concluded that "(c)ompelling reasons for the use of this procedure
were clearly present in this case." Pet. App. 11a-12a.
   Judge Murnaghan concurred in part and dissented in part.  Pet. App.
13a-19a.  He agreed with the majority that petitioner was not entitled
to an evidentiary hearing, and that most of the in camera material was
treated appropriately by the district court.  Id. at 13a.  Judge
Murnaghan believed, however, that the jury list as augmented by the
prosecutor's notes during voir dire should have been made available to
petitioner "with court-approved redactions where appropriate." Id. at
13a-16a.  And Judge Murnaghan's "chief disagreement" with the majority
was that he believed the district court had made clearly erroneous
factual findings as to two of the five black jurors who were struck
with peremptory challenges (Granderson and Johnson).  Id. at 16a-19a.
   Petitioner sought rehearing and rehearing en banc.  All of the
judges eligible to vote, except Judge Murnaghan, voted to deny
rehearing and rehearing en banc. Pet. App. 38a.
                               ARGUMENT
   Petitioner now seeks this Court's review of his claim (Pet. 7-19)
that the government's use of its peremptory challenges and the
district court's procedures for resolving his claim on that issue
violated Batson v. Kentucky, 476 U.S. 79 (1986).  Petitioner also
seeks review of his contention (Pet. 19-23) that he was entitled to an
entrapment instruction at trial.  Neither claim warrants review by
this Court.
   1. Petitioner's Batson claims are primarily fact-bound.  His
principal disagreement with the majority below (see Pet. 17-19), like
that of Judge Murnaghan, is that he would have arrived at different
factual conclusions as to several of the potential jurors struck by
the government.  Those factual questions have now been resolved
against petitioner by two courts below, and they warrant no further
review by this court.  See United States v. Doe, 465 U.S. 605, 614
(1984);  United States v. Reliable Transfer Co., 421 U.S. 397, 401 n.2
(1975);  Berenyi v. Immigration Director, 385 U.S. 630, 635 (1967).
   Moreover, petitioner fundamentally misapprehends an appellate
court's role in Batson cases, in at least two distinct ways.  First,
it is not an appellate court's function to assess the credibility of
the prosecutors.  That is the trial court's task.  Batson, 476 U.S. at
98 & n.21.  Nonetheless, petitioner asks this Court to reweigh the
prosecutors' representations against factors that allegedly undermine
the credibility of their explanations.  Second, the court is not to
determine whether the prosecutors had good reasons for their strikes,
only whether they in fact acted for race-neutral reasons.  See Batson,
476 U.S. at 97 ("we emphasize that the prosecutor's explanation need
not rise to the level justifying exercise of a challenge for cause").
Yet petitioner expressly asks this Court to judge the merit, rather
than the credibility, of the prosecutor's explanations. E.g., Pet. 17
("The fact that Mr. Johnson may have been unemployed at some time
prior to the trial has no perceptible bearing on his ability to be an
impartial juror at the time of trial.").  The government's
explanations for its peremptory strikes, as described above (and as
further bolstered by the in camera materials), are eminently
believable and were in fact credited by the district court.  Batson
does not authorize an appellate court to reject them.
   Petitioner argues that the procedures used by the district court
were inadequate to protect the rights recognized in Batson.  He
contends that he should have been allowed to examine the government's
ex parte submissions (Pet. 12-15), and that he was entitled to a
full-blown evidentiary hearing to challenge the government's rebuttal
of the prima facie case on the grounds of pretext (Pet. 8-12).
Petitioner claims that the circuits are in conflict on these issues.
Pet. 10-11, 13-14.
   Petitioner's claims of conflict, however, rest on a serious
mischaracterization of the Fourth Circuit's position.  By no stretch
of the imagination did the Fourth Circuit, in this case or in
Garrison, "conclude() that, once the government has articulated a
credible neutral explanation, the task of the district court is over,"
Pet. 10, nor did the court of appeals act on "the premise that the
defense has no role to play after producing a prima facie Batson
case," Pet. 14.  The Fourth Circuit, first in Garrison and then again
in this case, stated the precise opposite:  "(T)he important rights
guaranteed by Batson deserve the full protection of the adversarial
process except where compelling reasons requiring secrecy are shown. *
* * (T)he government must make a substantial showing of necessity to
justify excluding the defendant from this important stage of the
prosecution." Garrison, 849 F.2d at 106-107, quoted in Pet. App.
11a-12a.  The Fourth Circuit upheld limited ex parte submissions here
not because it disagreed with any other circuit, but because it found
"(c)ompelling reasons" to justify that action.  Pet. App. 12a.  There
is no basis for believing that any court of appeals would have
concluded otherwise on the facts of this case.
   Likewise, no circuit has adopted a rule requiring an evidentiary
hearing for every Batson claim.  United States v. Alcantar, 832 F.2d
1175, 1180 (9th Cir. 1987), which petitioner cites (Pet. 11), merely
holds that defendants should be allowed to "respond" to the
government's evidence, not that a full hearing is required in every
case.  Here, petitioner did respond to the government's proffered
reasons.  C.A. App. 32-62, 136-137.  Based on the record before it,
the court found that an evidentiary hearing was not necessary under
the particular factual circumstances presented.  Id. at 139-142.  Nor
does United States v. Chalan, 812 F.2d 1302, 1314 (10th Cir. 1987),
cert. denied, 109 S.Ct. 534 (1988), support petitioner's claim.  In
that case, the court remanded for an evidentiary hearing simply
because the reasons proffered by the government were "clearly
inadequate." 812 F.2d at 1314.  In this case, on the other hand, both
courts below found the government's explanations to be neutral,
nonpretextual, and sufficient to rebut petitioner's prima facie case.
   This Court in Batson expressly declined to impose a procedural
straitjacket on the district courts.  Indeed, the Court entrusted
trial judges with the responsibility to formulate flexible and
appropriate procedures for the Batson inquiry on a case-by-case basis.
 476 U.S. at 99 n.24.  The Court also alerted the courts of appeals to
the "great deference" with which resulting decisions of trial judges
should be reviewed.  Id. at 98 n.21.
   Evidentiary hearings are, of course, one permissible way to carry
out the commands of Batson, but no court has ever said that they are
the only way to do so.  The court of appeals unanimously concluded
that an evidentiary hearing was unnecessary on the facts of this case.
 See Pet. App. 13a (Judge Murnaghan "agree(d) with the majority that
the district judge acted within his discretion in declining to afford
(petitioner) an evidentiary hearing").  There is no basis to suppose
that any other court would have reached a different conclusion.  /5/
   2. Petitioner argues (Pet. 19-23) that the decision of the court of
appeals should be vacated in light of this Court's decision in Mathews
v. United States, 108 S. Ct. 883 (1988), which held that a defendant
need not admit all the elements of a crime in order to be entitled to
an entrapment instruction.  That argument is patently lacking in
merit.  Whatever may be said about the consistency of the district
court's reasoning with the decision in Mathews, the judgment of the
court of appeals rests on a ground entirely independent of the Mathews
holding:  petitioner's failure to present sufficient evidence of
either government inducement or lack of predisposition to commit the
charged offenses.  Pet. App. 36a.  A remand in light of Mathews would
accordingly be pointless.
   Petitioner quibbles with the determination of the court of appeals
that his showing was inadequate to warrant an entrapment instruction,
but that holding was plainly correct.  There was "overwhelming
evidence that (petitioner) was not 'an innocent person' induced to
distribute heroin but rather was a person predisposed to commit the
crimes charged." Pet. App. 36a.  Therefore, there was not "sufficient
evidence from which a reasonable jury could find entrapment," Mathews,
108 S. Ct. at 886, and petitioner was not entitled to an entrapment
instruction, id. at 888.  See also United States v. Marino, 868 F.2d
549 (3d Cir. 1989).  /6/
                              CONCLUSION
   The petition for a writ of certiorari should be denied.
   Respectfully submitted.
   WILLIAM C. BRYSON
      Acting Solicitor General
   EDWARD S.G. DENNIS, JR.
      Assistant Attorney General
   ANDREW LEVCHUK
      Attorney
   APRIL 1989
   /1/ As one of the Assistant United States Attorneys who
participated in the trial subsequently explained,
      Mr. Grandison was on trial at the same time as Tindle, in the
      same courthouse, on civil rights charges stemming from two
      murders.  The murder victims were to have been witnesses in a
      case against Mr. Grandison prosecuted by Mr. Cobb.  The reaction
      of all those at the prosecution table to the name Grandison --
      or anything close to it -- was immediate and visceral.
                      * * * * *
         The defense attorneys, this Court, and indeed the district
      court, may not share the government's concerns about Mrs.
      Granderson or the uncertainty regarding the effect the name
      similarity might have on her or other jurors during the lengthy
      trial and the deliberation process.  That, however, is not the
      question under Batson.  The question, as phrased by the district
      court, is whether the reasons were "true and honest ones." * * *
      While far more palatable but "pretextual" reasons might have
      been offered by the government to explain the strike of Mrs.
      Granderson, none were because they would not have been true.
   Appellee's Supplemental Memorandum in the Court of Appeals at 2-3
(Apr. 12, 1988).
   /2/ The evidence showed that decisions on peremptory challenges
were made outside the presence of the jury by striking the name of the
challenged venire member from a list provided by the clerk.  The list
contained the name, age, address, marital status, and employment of
the prospective juror, but contained no indication as to race.  Pet.
App. 3a.  There is no inconsistency, as petitioner contends (Pet.
18-19), between the government's failure to notice Johnson's race and
the government's decision to strike Brothers because of his physical
appearance.  Brothers, a very large man, was memorable because his
size made his appearance unusual.  Johnson's race was not an unusual,
and therefore not a memorable, charateristic.
   /3/ The government did not, as petitioner repeatedly asserts (Pet.
4, 17, 18), claim that it had struck Johnson merely because he worked
in Prince George's County.  The government justified its strike
because Johnson "worked at a location in Prince George's County which
was near an area where the Tindle narcotics operation was conducted."
C.A. App. 129.
   /4/ The district court also noted that, at the time of petitioner's
trial, the United States Attorney's Office for the District of
Maryland had long followed a written policy disapproving the exercise
of peremptory challenges in a discriminatory fashion.  C.A. App. 131.
   /5/ There is no need for this Court to hold this case pending its
decision in Tompkins v. Texas, 87-6405 (argued Dec. 6, 1988).
Petitioner's principal claims -- that the district court failed to
conduct an evidentiary hearing and that he was entitled to review the
government's ex parte submissions -- are not presented in that case.
And petitioner's challenge to the district court's factual findings is
inherently fact-bound;  the Court's disposition of Tompkins will thus
have no effect on that challenge.
   /6/ Petitioner claims (Pet. 21) that the opinion of the court of
appeals is in conflict with decisions from other circuits purportedly
holding "that the defendant need only create a factual issue to
receive the entrapment instruction." None of the cases he cites,
however would require that an entrapment instruction be given in a
case such as this one, where the evidence of predisposition was
"overwhelming" and the record was devoid of any "overreaching inducive
conduct on the part of the government." Pet. App. 36a.