### The Honorab le Jean C. Hamilton, United States District Judge 1 

### for the Eastern District of Missouri, adopting the report an d recommendation of the Honorable Catherine D. Perry, formerly United States Magistrate Judge for the Eastern District of Missouri , since appointed United States Distri ct 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 o f a writ of habeas 1 corpus under 28 U.S.C. § 2254, arguing that the state failed to prove ever y element of his drug t rafficking offense beyond a reasonable doubt because it tested an inadequate sample of cocaine base, and that the stat e impermissibly used peremptory strikes against African-America n venirepersons. We affirm.

### -2- 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 , Gib son denied having dropped the cup. Upon investigating, the officer s 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 Mi ssouri state court. During voir dire, the state used all of its peremptory challenges to strike seve n Africa n-Americans from the jury, giving as reasons either that th e venire persons had relatives who had been prosecuted or convicted fo r criminal offenses, ha d work schedules which conflicted with jury service, or equivocated over their ability to follow jury instructions. Durin g tri al, the state presented evidence from criminalist Mary Taylor that a sam ple of the material in the cup tested positive for the presence o f cocaine base, and that all of the material in the cup had a uniform textur e and c olor. The total weight of the material in the cup was 3.69 grams , althoughthe 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 containin g cocaine base), and he was sentenced to ten years imprisonment. Gibson's conviction was affirmed on appeal to the Missouri Court of Appeals; se e 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, becaus e the sample tested by Taylor weighed less than two grams. O n collateral review of the evidentiary sufficiency of

### -3-

a s tate court conviction, we must determine "whether, after viewing th e 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 evid ence" at all, United States v. Meeks , 857 F.2d 1201, 1204 (8th Cir. 1988). We have "affirmed the use of random testing t o 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 offens e. The evidence presented to the jury in this case, including the test results of a sample of the ma terial possessed by Gibson and testimony that all of the material was similar in texture and color, was suffi cient to prove that Gibson possessed in excess of two grams o f cocaine base beyond a reasonable doubt.

III.
Gibson n ext argues that the state violated Batson v. Kentucky , 47 6 U.S. 79 (1986), by striking African-Americans from the jury because o f their race. We apply a three-part analysis to a Batsonclaim. See Purket t v. Elem , 115 S. Ct. 1769, 1770-71 (1995) (per curiam). Assuming tha t Gibson has made a prima facie case of racial discrimination, step one in our analysis, we conclude that at step two the s tate successfully rebutted that prima facie case by stating race-neutral reasons for its use o f peremptory strikes; see id. at 1771. We note th at, at this stage, a court does not weigh the plausibility of the reasons given by the state, bu t mer elydetermines whether the reasons are facially race-neutral. It i s onlyat step three that "the persuasiveness of the justification becomes relevant--the step in which the trial court

### -4-

determines whether the opponent of the strike has carried his burden o f pro ving purposeful discrimination." Id. At this step, "implausible o r fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination." Id. However, "the ultimate burden o f 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 fairl y 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 er r 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 s eparately to emphasize the crucial importance of the trial judge's fact finding function as it relates to t he Batson v. Kentucky , 476 U.S. 79 (1979), jurisprudence. Preliminarily, it is well to recall th e underpinnings for limiting peremptory strikes injury selection. In Swain
v. Alabama , 380 U.S. 202 (1965), a case preceding Batson , the United State s Supreme Court recognized that "a State's purposeful or deliberate denial to Negr oes on account of race of participation as jurors in th e administration of justice violates the Equal Protection Clause." Id . at 203-204. The Batson Court reaffirmed that principle. Additionally, the Court in Batson stated:

### -5- The harm from discriminatory jury selection extend s beyond that inflicted on the defendant and the excluded juror to touc h the entire community. Selection procedures tha t purposefully exclude black persons from juries unde rmine public confide nce in the fairness of our system of justice. . .
. Di scrimination within the judicial system is most perniciou s 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 se cure to all others.' Strauder [v. West Virginia] , 100 U.S. [303], 308 (1880).
Id. at 87-88.
Und er Batson , once the defendant makes a prima facie case th e prosec utor (or proponent of the peremptory strike) must articulate a neutr al explanation relating to the case to be tried. Id . at 98. Tha t 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 wil l usua llyact with promptness, often at a bench conference outside th e hearing of the jury.

The sho wing of pretext usually will not call for any evidence, bu t rather argument and reference to the voir dire of the jury. The reaso n offered by the prosec utor or proponent of the strike need not be accepted by the court at stage three (pretext) of the proceeding.
As observ ed in Purkett v. Elem , 115 S. Ct. 1769 (1995), impossible, fantastic, silly or s uperstitious justifications may and probably will be found pretextual. Id. at 1771.
Where, as in this case, the proponent of the strikes utilizes al l 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
. More over, utilizing all peremptory challenges against minority person s presumptively

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strikes at the very heart of the Batsonrule--that a person shall not be de prived by reasons of race of the privileges and obligations o f citizenship in serving as a juror.
The seven African-Americans who were stricken may well have believed that race underlay their rejection, regardless o f the prosecutor's reasons provided to the trial judge. When a prosecutor utilizes all peremptor y strikes against only African-American citizens, the reasons offered will often ca rry a hollow sound of pretext, and a trial judge might look a t 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 b e 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 ju dge could have been easily justified in the circumstances of this case.
A true copy.

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