The Honorable Jean C. Hamilton, United States District Judge 1

for the Eastern District of Missouri, adopting the report and

recommendation of the Honorable Catherine D. Perry, formerly United

States Magistrate Judge for the Eastern District of Missouri, since

appointed United States District Judge for the Eastern District of

Missouri.

___________

No. 95-2144

___________

James Gibson, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Michael Bowersox, *

* 

Appellee. *

___________

 Submitted: December 15, 1995

 Filed: March 11, 1996

___________

Before MAGILL, BRIGHT, and MURPHY, Circuit Judges.

___________

MAGILL, Circuit Judge.

James Gibson appeals the district court's denial of a writ of habeas 1

corpus under 28 U.S.C. § 2254, arguing that the state failed to prove every

element of his drug trafficking offense beyond a reasonable doubt because

it tested an inadequate sample of cocaine base, and that the state

impermissibly used peremptory strikes against African-American

venirepersons. We affirm.
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I.

On May 23, 1991, St. Louis, Missouri police officers Mark Grman and

John Winter observed appellant James Gibson, an African-American, drop a

paper cup to the ground. When asked by the officers to pick up his litter,

Gibson denied having dropped the cup. Upon investigating, the officers

found that the cup contained pieces of what appeared to be cocaine base,

and placed Gibson under arrest.

Gibson was tried before a jury in Missouri state court. During voir

dire, the state used all of its peremptory challenges to strike seven

African-Americans from the jury, giving as reasons either that the

venirepersons had relatives who had been prosecuted or convicted for

criminal offenses, had work schedules which conflicted with jury service,

or equivocated over their ability to follow jury instructions. During

trial, the state presented evidence from criminalist Mary Taylor that a

sample of the material in the cup tested positive for the presence of

cocaine base, and that all of the material in the cup had a uniform texture

and color. The total weight of the material in the cup was 3.69 grams,

although the piece tested by Taylor weighed less than 2 grams. The jury

convicted Gibson for trafficking drugs in the second degree, Mo. Rev. Stat.

§ 195.223.3(1) (possession of more than two grams of a substance containing

cocaine base), and he was sentenced to ten years imprisonment. Gibson's

conviction was affirmed on appeal to the Missouri Court of Appeals; see

State v. Gibson, 856 S.W.2d 78 (Mo. App. 1993).

II.

Gibson first argues that the state failed to prove beyond a

reasonable doubt that he possessed in excess of two grams of cocaine base,

because the sample tested by Taylor weighed less than two grams. On

collateral review of the evidentiary sufficiency of
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a state court conviction, we must determine "whether, after viewing the

evidence in the light most favorable to the prosecution, a rational trier

of fact could have found the essential elements of the crime beyond a

reasonable doubt." Haymon v. Higgins, 846 F.2d 1145, 1146 (8th Cir. 1988)

(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In this case, the

state did not have to test every particle of the cocaine base to prove its

nature; indeed, "[p]roof of the existence of a controlled substance need

not be by direct evidence" at all, United States v. Meeks, 857 F.2d 1201,

1204 (8th Cir. 1988). We have "affirmed the use of random testing to

establish that a substance contains cocaine base" for sentencing purposes,

United States v. Johnson, 944 F.2d 396, 404-06 (8th Cir.), cert. denied,

502 U.S. 1008 (1991), and hold that this method is also valid to prove the

elements of an offense. The evidence presented to the jury in this case,

including the test results of a sample of the material possessed by Gibson

and testimony that all of the material was similar in texture and color,

was sufficient to prove that Gibson possessed in excess of two grams of

cocaine base beyond a reasonable doubt. 

III.

Gibson next argues that the state violated Batson v. Kentucky, 476

U.S. 79 (1986), by striking African-Americans from the jury because of

their race. We apply a three-part analysis to a Batson claim. See Purkett

v. Elem, 115 S. Ct. 1769, 1770-71 (1995) (per curiam). Assuming that

Gibson has made a prima facie case of racial discrimination, step one in

our analysis, we conclude that at step two the state successfully rebutted

that prima facie case by stating race-neutral reasons for its use of

peremptory strikes; see id. at 1771. We note that, at this stage, a court

does not weigh the plausibility of the reasons given by the state, but

merely determines whether the reasons are facially race-neutral. It is

only at step three that "the persuasiveness of the justification becomes

relevant--the step in which the trial court
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determines whether the opponent of the strike has carried his burden of

proving purposeful discrimination." Id. At this step, "implausible or

fantastic justifications may (and probably will) be found to be pretexts

for purposeful discrimination." Id. However, "the ultimate burden of

persuasion regarding racial motivation rests with, and never shifts from,

the opponent of the strike." Id. Whether a race-neutral explanation is

pretextual for discrimination is a question of fact, see Jones v. Jones,

938 F.2d 838, 841 (8th Cir. 1991), and in "habeas proceedings in federal

courts, the factual findings of state courts are presumed to be correct,

and may be set aside, absent procedural error, only if they are 'not fairly

supported by the record.'" Purkett, 115 S. Ct. at 1771 (quoting 28 U.S.C.

§ 2254(d)(8)). We conclude that the state courts' factual findings that

the state's racially-neutral reasons were not a pretext for discrimination

were amply supported by the record, and that the district court did not err

in denying Gibson's petition for a writ of habeas corpus.

Accordingly, we affirm the judgment of the district court.

BRIGHT, Circuit Judge, concurring.

I write separately to emphasize the crucial importance of the trial

judge's fact finding function as it relates to the Batson v. Kentucky, 476

U.S. 79 (1979), jurisprudence. Preliminarily, it is well to recall the

underpinnings for limiting peremptory strikes in jury selection. In Swain

v. Alabama, 380 U.S. 202 (1965), a case preceding Batson, the United States

Supreme Court recognized that "a State's purposeful or deliberate denial

to Negroes on account of race of participation as jurors in the

administration of justice violates the Equal Protection Clause." Id. at

203-204. The Batson Court reaffirmed that principle.

Additionally, the Court in Batson stated:
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The harm from discriminatory jury selection extends

beyond that inflicted on the defendant and the excluded juror

to touch the entire community. Selection procedures that

purposefully exclude black persons from juries undermine public

confidence in the fairness of our system of justice. . . .

Discrimination within the judicial system is most pernicious

because it is `a stimulant to that race prejudice which is an

impediment to securing to [black citizens] that equal justice

which the law aims to secure to all others.' Strauder [v. West

Virginia], 100 U.S. [303], 308 (1880). 

Id. at 87-88.

Under Batson, once the defendant makes a prima facie case the

prosecutor (or proponent of the peremptory strike) must articulate a

neutral explanation relating to the case to be tried. Id. at 98. That

articulation must be "clear and reasonably specific". See, id. at 98 n.20.

In the context of an objection to a peremptory strike, the court will

usually act with promptness, often at a bench conference outside the

hearing of the jury.

The showing of pretext usually will not call for any evidence, but

rather argument and reference to the voir dire of the jury. The reason

offered by the prosecutor or proponent of the strike need not be accepted

by the court at stage three (pretext) of the proceeding.

As observed in Purkett v. Elem, 115 S. Ct. 1769 (1995), impossible,

fantastic, silly or superstitious justifications may and probably will be

found pretextual. Id. at 1771.

Where, as in this case, the proponent of the strikes utilizes all

seven peremptory challenges to strike African-Americans from the jury, a

fact finder could be justified in rejecting, as pretextual at stage three

of the proceedings, the race neutral reasons offered by the prosecutor.

Moreover, utilizing all peremptory challenges against minority persons

presumptively
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strikes at the very heart of the Batson rule--that a person shall not be

deprived by reasons of race of the privileges and obligations of

citizenship in serving as a juror.

The seven African-Americans who were stricken may well have believed

that race underlay their rejection, regardless of the prosecutor's reasons

provided to the trial judge. When a prosecutor utilizes all peremptory

strikes against only African-American citizens, the reasons offered will

often carry a hollow sound of pretext, and a trial judge might look at

these reasons with a jaundiced eye and reject them as pretextual.

However, the state trial judge here honored the strikes in this case

and the Missouri courts approved of that action as not violative of Batson.

In a habeas case, the federal courts must presume such findings to be

correct if there is support in the record. And, as noted by the opinion

of the majority, some evidence does support the strikes. I would add,

however, that a contrary finding by the trial judge could have been easily

justified in the circumstances of this case.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.