IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 91-3427

_____________________

UNITED STATES OF AMERICA

Plaintiff-Appellee,

versus

THOMAS BENTLEY-SMITH and

EDSIL M. ELLEDGE, JR., a/k/a Ken Elledge,

Defendants-Appellants.

_________________________________________________________________

Appeals from the United States District Court

for the Middle District of Louisiana

_________________________________________________________________ (September 20, 1993)

Before JOHNSON, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:

Following a jury trial, Ken Elledge and Thomas Bentley-Smith

were convicted of conspiring to illegally transport hazardous waste

and illegally transporting hazardous materials. Bentley-Smith was

also convicted of storing hazardous material without a permit. The

defendants raise several issues in this appeal. Finding no

reversible error, we affirm.

I. F ACTS AND P ROCEDURAL H ISTORY

During ea rly 1983, the Louisiana Department of Agriculture

(LDA) sought to dispose of twelve drums of herbicide containing

2,4,5-T richlorophenoxyacetic acid (2,4,5-T) and 2,4-1 THAN, a subsidiary of the original manufacturer of the herbicide, was

formed to administer the cleanup of facilities that had manufactured agent

orange.

2 RCRA defines hazardous wastes as wastes found to pose significant risks to human health and the environment. 42 U.S.C. § 6903(5). Regulations promulgated by the EPA list the various wastes that have been identified as

hazardous. See 40 C.F.R. pt. 261.

3 RCRA prohibits the transportation of hazardous waste without a tracking form known as a RCRA manifest. 42 U.S.C. §§ 6922(a)(5), 6923(a)(3). RCRA also prohibits the storage of hazardous wastes without a permit. 42

U.S.C. § 6925.

2 dichlorophenoxyacetic acid (2,4-D) )) a combination of ch emicals

commonly known as agent orange. At all relevant times, 2,4-D and

2,4,5-T were both listed as hazardous wastes by the Environmental

Protection Agency. See 40 C.F.R. § 261.33. Several of the drums

contained liquid herbicid e, others contained herbicide that had

solidified and separated into layers, and at least one drum

contained contaminated soil and debris. In May of 1985, Ken

Elledge, the program coordinator for LDA's pesticide waste program,

contact ed T.H. Agriculture and Nutrition Company (THAN) to see

whether it would accept them. 1 Robert Wells, who served as vicepresident of THAN, agreed to accept the drums. Wells contacted

Paul Zimmerman in the Baton Rouge office of Chemica l Waste

Management (CWM) to arrange for transport of the drums.

On September 23, 19 85, Elledge and Thomas Bentley-Smith, a

Project Manager f or CWM, met at an LDA warehouse and loaded the

drums into a rental truck. Although all of the drums contained a

chemical identified as a hazardous waste under the Resource

Conservation and Recovery Act (RCRA), 2 no manifest was prepared for

t he shipment. 3 Bentley-Smith then transported the drums to unit3

102 of a mini-warehouse facility in Baton Rouge called David's Mini

Storage. The drums remained in unit 102 for about 17 months, until

Zimmerman's administrative assistant notified CWM management.

In September of 1990, Elledge, Bentley-Smith, Zimmerman, and

Wells were indicted for violations of RCR A. All four men were

charged with conspiring to transport hazardous wastes without a

hazardous waste manifest and with transporting and caus ing the

transportation of hazardous waste w ithout a hazardous waste

manifest in violation of 42 U.S.C. § 6928(d)(5) . Bentley-Smith

alone was charged with storing hazardous waste without a permit in

violation of 42 U.S.C. § 6928(d)(2)(A). One week before trial,

Zimmerman pled guilty and testified against the others. Wells was

subsequently acquitted by the jury. Elledge and Bentley-Smith were

convicted on all counts.

II. D ISCUSSION

A. Peremptory Strikes

During the jury selection, the defendants used eight of their

thirteen peremptory challenges to strike all of the black members

of the venire. The government objected to the defendants' proposed

strikes on equal protection grounds. After extensive argument by

both sides, the district court determined that the defendants'

strikes had offended the potential jurors' equal protection rights.

The court specifically rejected the defend ants' reasons for4 The district court rejected the defendants' explanations for striking

three jurors )) George Williams, Lula Station, and Jacqueline Richardson. For Station, the main reason given for the strike was one attorney's feeling that she might be a follower instead of an independent thinker. Also, the same attorney noted that she worked for the East Baton Rouge Parish School Board, a school board that had some asbestos problems in the past. None of the other attorneys could recall why Station was challenged.

For Richardson, the two attorneys for Wells explained that, since she worked as an insurance agent, she might have had some contact with claims arising from injury to property. Richardson had also worked as a secretary for a relative who was an attorney.

The reasons for striking Williams were a little more complex. BentleySmith did not want to strike Williams at all. Elledge's attorney explained that he had challenged Williams because he had served on two previous juries and both had returned guilty verdicts. (This was incorrect, however. Williams, like several of the white veniremen, had served on only one jury )) although that jury did return a guilty verdict.) Wells's attorney felt that Williams, a middle school principal, was used to handing out discipline and might tend to be authoritarian.

5 In McCollum , the Supreme Court actually applied the Equal Protection
Clause of the Fourteenth Amendment. In a federal criminal case, the same protections apply through the Fifth Amendment. United States v. Pofahl , 990 F.2d 1456, 1464 n.3 (5th Cir. 1993), petition for cert. filed (U.S. Aug. 4,
1993) (No. 93-5526).

4 striking three of the black jurors as pretextual. 4 The district

court then reseated the entire venire and directed the attorneys to

repeat the peremptory strike process. The defendants were

instructed, however, that they could not use peremptory challenges

to strike the three black jurors in question. One of these three

jurors, George Williams, served on the jury.

It is settled that the Fifth Amendment prevents criminal

defendants from using peremptory strikes on the basis of race.

Georgia v. McCollum

, 112 S. Ct. 2348, 2359 (1992). 5 It is equally

settled that the prosecution has standing to assert the equal

protection rights of excluded jurors. Id. at 2357. The district

court's determination that a party has used peremptory strikes in

a disc riminatory manner is a finding of fact and thus cannot be5

overturned by this Court absent clear error. H ernandez v. New

York

, 111 S. Ct. 1859, 1871 (1991). The district court's

determination is entitled to great deference, since findings in

this context largely turn on an evaluation of the credibility or

demeanor of the attorney who exercises the challenge. See Batson

v. Kentucky

, 476 U.S. 79, 98 n.21 (1986); Hernandez

, 111 S. Ct. at

1869. Where a finding of fact is based upon an incorrect legal

standard, the finding loses the insulation of clearly erroneous

review. P avlides v. Galveston Yacht Basin

, 727 F.2d 330, 339 n.16

(5th Cir. 1984).

In the instant case, defendants used their peremptory

challenges to strike all blacks from the jury pool. The defendants

concede that this demonstrated a prima facie case of racial bias

and that the burden then shifted to the defendants to provide raceneutral reasons f or the strikes. However, the defendants claim

that the district cou rt erred in determining that the defendants

applied their peremptory strikes in a racially discriminatory

manner.

1. Batson's burden of proof

The defendants first argue that the district court improperly

allocated the burden of proof in reaching its decision. The

Supreme Court has outlin ed a three-step process for determining

whether preemptor y strikes have been applied in a discriminatory

manner. First, the claimant must make a prima facie showing that

the peremptory challenges have been exercised on the basis of race.

Second, if this requisite showing has been made, the burden shifts6

to the party accused of discrimination to articulate race-neutral

explanations for the peremptory challeng es. Finally, the trial

court must determine whether the claimant has carried his burden of

proving purposeful discrimination. S ee Batson

, 476 U.S. at 93-98;

McCollum

, 112 S. Ct. at 2359 (extending Batson framework to

criminal defendant's discriminatory use of peremptory strikes).

The “shifting burden” described in the Batson framework is one

of production only. The ultimate burden of persuasion always lies

with the party making the claim of purposeful discrimination. At

the second stage of the Batson framework )) where the party accused

of discrimination must articulate a race-neutral explanation for

the peremptory challen ges )) the issue is merely the facial

validity of the explanation. “Unless a discriminatory intent is

inherent in the

. . . explanation, the rea son offered will be

deemed race neutral.” H ernandez

, 111 S. Ct. at 1866. In the

instant case, the defendants argue that the district court erred by

improperly shifting the burden of persuasion onto the defendants ))

and requiring the defendants to prove that the strikes were not

racially motivated.

We cannot agree. Although the defendants are able to parse

out quotations from the district court that appear to support their

argument, an examination of the whole transcript tells a different

story. Contrary to the defendants’ suggestions, it appears that

the district court correctly unders tood the three-part analysis

required by Batson

.

The district court specifically noted that, under B atso n
,7

after the government makes a prima facie showing of discrimination,

the burden shifts to the defendant to advance a neutral explanation

for the challenge. The court also stated that once the defendants

give their explanations, the government has the opportunity to show

that defendants' claims are pretextual. The district court's

holding followed extensive discussion on this issue by all parties,

with the defense presenting their explanations for the peremptory

c hallenges and the prosecution attempting to show that th e

defendants' proffered reasons were pretextual.

At that point, the Batson framework required the di strict

court to determine whether the prosecution had established

purposeful discrimination . In a typical peremptory challenge

inquiry, the decisive question will normally be whether a proffered

race-neutral explanation should be believed. S ee United States v.

Johnson , 941 F.2d 1102, 1108 (10th Cir. 1991). There will seldom

be any evidence that the claimant can introduce )) beyond arguing

that the explanations are not believa ble or pointing out that

similar claims can be made about non-excluded jurors who are not

minorities.

That is exact ly what the government did in this case. A

review of the entire record convinces us that the district court

did not shift the burden of persuasion to the defendants. Rather,

the district court listened to th e defendants’ proffered

explanations and to the response of the prosecution, and simply

reached a decision that the defendants' explanations for three of

the peremptory strikes were pretextual.8

2. The Role of Intuition

Next, t he defendants argue that the district court erred in

con cluding that intuitive judgment could not be a race-neutral

reason for the challenged peremptory strikes. At the chambers

conference discussing the Batson question, th e court opined that

"[s]ome things th at are not considered to be neutral acts are as

follows: denial of discriminatory motive; affirmance of his/her

good faith of the defendant, nor intuitiv e judgment of the

defendant's counsel will serve to form the non-discriminatory basis

upon which the peremptory challenges have to be based."

The defendants argue that this was contrary to the law of this

circuit and, as a result, the convictions must be reversed. While

we agree that the district court's statement, standing alone, is an

inaccurate statement of the law of peremptory cha llenges under

Batson

, we conclude, looking at this record as a whole, that the

district court employed the right test, which is to decide whether

the attorney, despite the reasons given for the peremptory strikes,

actually engaged in purposeful discrimination in makin g those

strikes.

Earlier decisions of this court have made it plain that the

process of choosing a jury may be influenced by the “intuitive

assumptions” of the attorneys. S ee, e.g.
, United States v. Lance

,

853 F.2d 1177, 1181 (5th Cir. 198 8). In fact, many of the

judgments made by counsel in picking a jury are purely intuitive

and based upon inarticulable factors, or even hunches. Thus, we6 This court repeatedly has upheld peremptory challenges based upon

intuition and other objectively unverifiable considerations. See, e.g.

, United States v. Hinojosa , 958 F.2d 624, 632 (5th Cir. 1992) ("[V]alid reasons for exclusion may include intuitive assumptions.); United States v. Clemons

, 941 F.2d 321, 325 (5th Cir. 1991) ("[T]he . . . explanation . . . need not be quantifiable and may include intuitive assumptions upon confronting a potential juror."); United States v. Roberts , 913 F.2d 211, 214 (5th Cir. 1990) ("Intuitive assumptions about a potential juror's interest and attitudes can be acceptable as a neutral explanation for a peremptory challenge."),

cert. denied , 111 S. Ct. 2264 (1991); United States v. De La Rosa

, 911 F.2d 985, 991 (5th Cir. 1990) ("We have stated that `valid reasons for exclusion [of jurors] may include "intuitive assumptions" upon confronting a venireman . . . eye contact, demeanor, age, marital status, and length of residence in the community . . . '. It is not essential that the . . . basis (continued...)

9 specifically have approved of such subjective manifestations as eye

contact (or absence of the same) as justifications for rejecting a

potential juror:

[The plaintiffs] argue that [the defendant's] reliance on an unverifiable subjective consideration such as eye

contact casts fur ther doubt on its justification. We disagree. Jurisprudentially, it is too late in the day

to contend that eye contact fails t o satisfy the striking party's burden of articulating a neutral explanation. Recognizing that "the decision to exercise

a peremptory challenge . . . is subjective" and often

"influenced by intuitive assumptions," we have explicitly accepted e ye contact (or lack thereof) as a legitimate rationale. I n the Batson context, subjective

considerations might not be susceptible to objective

rebuttal or verification. We nonetheless permit them

because of the inherent nature of peremptory challenges,
with the understanding that ultimate Batson findings "largely will turn on evaluation of credibility" of counsel's explanation

.

Polk v. Dixie Ins. Co.

, 972 F.2d 83, 86 (5th Cir. 1992) (per

curiam) (emph asis added) (citing or quoting T homas v. Moore

,

866 F.2d 803, 805 (5th Cir.), cert. denied

, 493 U .S. 840 (1989);

Lance

, 853 F.2d at 1181; United S tates v. Terrazas-Carrasco

,

861 F.2d 93, 94-95 n.1 (5th Cir. 1988); United States v. Cartlidge

,

808 F.2d 1064, 1071 (5th Cir. 1987); Batson

, 476 U.S. at 98 n.21),

cert. denied , 113 S. Ct. 982 (1993). 66 (...continued)

for a peremptory challenge be quantifiable." (Citations omitted; ellipses in original.)), cert. denied , 111 S. Ct. 2275 (1991); United States v. RomeroReyna , 889 F.2d 559, 560-61 (5th Cir. 1989) (upholding peremptory strikes based upon counsel's invocation of her "P rule," whereby she systematically struck all potential jurors whose occupations began with the letter "P," such as pipeline operators, pharmacists, and postal workers), cert. denied , 494
U.S. 1084 (1990); United States v. Moreno , 878 F.2d 817, 820-21 (5th Cir.) (allowing use of "intuitive assumptions," including counsel's "gut reaction" that a commercial artist would have sympathy for persons involved with drugs),

cert. denied , 493 U.S. 979 (1989); Terrazas-Carrasco , 861 F.2d at 94 ("Valid reasons for exclusion may include `intuitive assumptions' upon confronting a venireman.").

10 In err oneously stating that intuition is not a sufficient

ground, standing alone, on wh ich to base a peremptory challenge,

the district court simp ly may have been expressing the

understandable concern that counsel's claim to a n intuitive

reaction is not susceptible to the ordinary methods of proof and

thus may be suspect as a proxy for a race-based challenge. But the

ultimate inquiry for the judge is not whether counsel's reason is

suspect, or weak, or irrational, but whether counsel is telling the

truth in his or her assertion that the challenge is not race-based.

This is no different from the credibility choices that finders

of fact )) whether judges or juries ) ) are called upon constantly

to make. An attorney who claims that he or she struck a potential

juror because of intuition alone, without articulating a specific

factual basis such as occupation family bac kground, or even eye

contact or attentiveness, is more vulnerable to the inference that

the reason proffered is a proxy for race. That is not to say,

however, that the reason should be rejected out of hand; that is a

call for the judge to make, based upon his or her evaluation of

such things as the demeanor of counsel, the reasonableness of the11

justifications given, and even the court's personal observation of

the venireman.

We explained this process carefully in Thomas v. Moore :

The decision to exercise a peremptory challenge, in contrast to a challenge for cause, is subjective; and,
often, the reasons behind that decision cannot be easily

articulated

. Determining whether [an attorney] has

acted dis criminatorily in his use of a peremptory challenge depends greatly upon the ob servations of the presi ding judge . . . . This firsthand review by the

trial court is vital to the b alance struck between the
historical role and practice of peremptory challenges and the demands of equal protection.

866 F.2d at 805 (emphasis added, citations omitted).

This comports with Batson 's requirement that acceptable

explanations be "clear and reasonably specific." 476 U.S. at 98

n.20. That is to say, if, for example, an attorney claims that he

or she has struck a prospective juror because intuition tells the

attorney that that juror will be inattentive or will be a follower

inst ead of independent-minded, that is a specific reason ) ) and

perhaps the best reason the lawyer can give about that juror )) why

that particular juror is not suited for the case at hand.

The reason certainly is stronger if the attorney is able to

articulate an objective fact, such as that the juro r was slow in

answering questions or had to have questions repeated. Without

such an objective buttress, the judge may feel more free to suspect

that race is really at the hear t of the challenge. On the other

hand, the judge is free, based upon all the information presented

and that judge's eyewi tness observation of counsel, to conclude

that the re ason is offered in good faith and not as a subterfuge

for race.7 Even though only Williams eventually served on the jury, we must also

examine the district court's rejection of the defendants' explanations for the two other prospective jurors. "The denial or impairment of the right to exercise peremptory challenges is reversible error without a showing of prejudice." United States v. Broussard , 987 F.2d 215, 221 (5th Cir. 1993).

12 Our review of the entire record shows that the district court

did not commit reversible error in this case. The defendants'

explanations for striking Richardson and Williams )) the venireman

who eventually wound up sitting on the jury 7 )) had nothing to do

with the intuition of the attorneys. Thus, even if the district

court was mistaken about the proper role of intuition, it cannot be

said that the incorrect legal standard influenced the d istrict

court’s finding of fact on these two prospective jurors. The

district court's conclusion that the explanatio ns for these two

strikes were pretextual would still be reviewed under the clearly

erroneous standard.

In contrast, the explanation offered for striking Station ))

that she seemed to be a follower )) did appear to involve only the

intuition of the attorneys. At first blush, we might conclude that

the district court disallowed the strike of Station on the basis of

an erroneous view that an intuitive judgment alone will not

suffice. Our review of the record reveals, however, that the

district court in fact did exactly as the law requires: It looked

at the circumstances at hand and made the ultimate judgment call

that the strike of Station was race-based and thus could not stand.

Defending his strike of Station, defe nse counsel stated, "I

think my vote regarding Ms. Station was that I thought she was

going to be )) she might not be an independent thinker. She would8 Counsel also stated,

I am looking at my notes to see if I have any other notes. I have got them scattered across my file. And the other one was, Judge, she worked for the East Baton Rouge Parish School Board. I think

it had )) I don't know if we mentioned the asbestos problems that the East Baton Rouge Parish School Board is having or not. I am

not sure in connection with the hazardous waste. I am not sure whether she raised her hand or not when that came up, but I am trying to look at my notes to see whether )) [.]

This may indicate that, in fact, an objective fact, in addition to an intuitive judgment, was offered in regard to Station. Nevertheless, the reasons offered did not impress the district judge to accept the strike as

other than race-based.

13 be a f ollower." 8 For example, in its discussion with the

attorneys, the district court stated,

I think as to three jurors the reasons given would not support the standard in Batson . . . . And that is Ms. Station, Mr. Williams and Ms. Richardson. Just the

reasons given are just not there other than the fact that I believe these people are black. More so on Ms.

Station and Ms. Richardson.

Particularly in regard to Station, it is evident that the

court was not rejecting the attorney's explanation solely because

it was intuitive. Instead, the court evaluated all the information

it had before it, including credibility judgments, in reaching its

conclusion:

On Lula Station, the court cannot see any reason.

Just telling the court that she is a follower clearly violates what the Supreme Court has stated that that is

not a reason for merely excusing a juror. And the court
finds that insofar as Lula Station is concerned, t he court finds that she was excluded solely because of her race, and therefore, makes such a finding

.

The court further f inds that the defendants have

not submitted any evidence to dem onstrate that the

rebuttal evidence presented by the government insofar as

Ms. Station is concerned should b e rejected by the

court. Ms. Station is sixty-six years old, is the mother of six children, is ) ) just to say that becaus e of that she, the gut feeling of the defendants is that she is a follower. For no other reason, the court must9 It should also be noted that the district court accepted the

explanation that one of the other prospective jurors was challenged because defense attorneys felt he would be unable to comprehend the evidence. This explanation also involved an intuitive component. However, the intuitive assumption that this prospective juror would be unable to comprehend the evidence was based upon a specific articulable observation that he hesitated before answering questions during voir dire. The fact that this explanation was accepted serves to illustrate further that the district court was not applying a per se rule against intuitive assumptions.

14 and does assume under the facts of this case in

c onsidering the overall conduct of the defendants in

this case that she was stricken sol ely because of her race. [Emphasis added.]

Accordingly, we conclude that the district court employed the

proper test in determining that the strike of Lula Station was

race-based. Its finding of discrimination is not clearly

erroneous. 9

3. Findings of Fact

As a last resort, the defendants argue that, even if the

correct legal standard was applied, the district court was clearly

erroneous in finding purposeful discrimination in the exercise of

the defendants’ peremptory strikes. In pressing this argument, the

defendants are at a tremend ous disadvantage. We will not find a

district court’s ruling to be clearly erroneous unless we are left

with the definite and firm conviction that a mistake has been

committed. P ofahl

, 990 F.2d at 1466. As discussed earlier, since

the district court's determination that a party has used peremptory

strikes in a discriminatory manner largely turns on an evaluation

of the credibility or demeanor of the attor neys involved, the

finding is entitled to great deference. Based upon the record in

this case, we cannot say that the district court’s findings were10 The two lab-pack drums did not contain 2,4,5-T. In fact, it is

unclear whether the drums contained any listed hazardous waste at all.

15 clearly erroneous.

B. Rule 404(b) Evidence

Bentl ey-Smith also argues that the district court erred in

admitting evidence under F ED

. R. E VID

. 404( b) of other wastes that

were also stored at the mini-warehouse facility in Baton Rouge.

The prosecution i ntroduced evidence that Bentley-Smith knew that

the mini-w arehouse also contained two "lab-pack drums" that had

been shipped from a THAN facility in Kansas City. These two lab

packs were fifty-five-gallon drums packed with smaller containers

of laboratory waste along with absorbent materials to soak up any

spills. 10 The district court determined that this evidence was

admissible under rule 404(b) because it was potentially relevant to

the question of whether Bentley-Smith knew that the twelve LDA

drums contained hazardous waste.

A district court's decision to admit evide nce under

rule 404(b) is reviewed under an abuse of discretion standard.

United States v. Anderson

, 933 F.2d 1261, 1268 (5th Cir. 1991). In

criminal cases, however, our review is necessarily heightened. I d.

Rule 404(b) states that

[e]vidence of other crimes, wrongs, or acts is not admissible

to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for

other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake

or accident . . . .

In United States v. Be echum , 582 F.2d 898, 911 (5th Cir. 1978),11 Rule 403 provides "Although relevant, evidence may be excluded if

its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.'

16 cert. denied , 440 U.S. 920 (1979), this court outlined a two-part

test to determine the admissibility of evidence under rule 404(b).

First, the extrinsic offense evidence must be relevant to an issue

other than that defendant's character. Second, the evidence must

possess probative value that is not substantially outweighed by its

undue prejudice and must als o meet the other requirements of F E D

.

R. E VID

. 403. 11

At trial, it was undisputed that Bentley-Smit h knowingly

transported the twelve drums f rom the LDA to the mini-storage

facility. The real question was whether he knew that the drums

contained "waste" within the meaning of RCRA. The mere fact that

two drums containing known waste products were also stored at the

same facility says very little about Bentley-Smith's knowledge of

the contents of the twelve drums in question.

Ultimately, however, we do not have to decide whether the labpack evidence was rel evant to an issue other than character. We

must view any error "not in isolation , but in relation to the

entire proceedings." U nited States v. Brown

, 692 F.2d 345, 350

(5th Cir. 1982). In spite of Bentley-Smith's assertions to the

contrary, there was plenty of evidence that he knew the material in

the twelve LDA drums was waste.

Bentley-Smith's emp loyer, CWM, was in the business of waste

transport and disposal. The labels on the drums indicated that17

some of them contained contaminated dirt and debris. Bentley-Smith

examined the contents of the drums before moving them and returned

the next day to collect samples. Finally, when interviewed by an

EPA investigator before his indictment, Bentley-Smith repeatedly

referred to the drums as waste. Given all of the evidence

indicating that Bentley-Smith knew the LDA drums contained waste,

any error in admitting evidence of the two lab-pack drums would not

have substantially influenced the jury's verdict and was therefore

harmless.

C. The Jury Charge

Both defendants requested that the district court instruct the

jur y that, as an element of both of the charged offenses, the

government must prove that the defendants knew the substance in the

LDA drums was waste. The defendants now argue that the district

court erred in failing to give this jury instruction.

The district court's refusal to give a requested instruction

is reviewed for abuse of discretion. U nited States v. Sellers

,

926 F.2d 410, 414 (5th Cir. 1991). The trial judge has

"substantial latitude in tailoring the instructions so long as they

fairly and adequately cover the issues presented." United States

v. Pool , 660 F.2d 547, 558 (5th Cir. Unit B Nov. 1981).

A trial judge's refusal to deliver a requested in struction

constitutes reversible error only if three conditions exist:

(1) the instruction is substantially correct; (2) it is not

substantially covered in the charge actually given to the jury; and18

(3) it concerns an important point in the trial so that the failure

to give it seriously impairs the defendant's ability to present a

given defense effectively. U nited States v. Grissom

, 645 F.2d 461,

464 (5th Cir. Unit A May 1981). This court will reverse only if

the defendant was improperly denied the chance to convey his case

to the jury. "[I]n other words, an abuse of discretion occurs only

when the failure to give a requested instruction serves to prevent

the jury from considering the defendant's defense." U nited States

v. Hunt , 794 F.2d 1095, 1097 (5th Cir. 1986).

In this case, the defendants' argument must be r ejected

because it fails to satisfy the second Grissom condition. On the

day after the jury began deliberations, the district court gave the

jury a modified charge explaining that if defendants did not

discard or intend to discard the material in the drums, the

defendants must be found not guilty. This supplemental instruction

substantially covered the charge requested by defendants.

D. Prosecutorial Misconduct

The other issues raised by the defendants can be disposed of

readily. First, the defendants argue that the district court erred

in refusing defendants' request for a mistrial and motion for a new

trial based on prosecutorial misconduct. The standard of review

for a denial of a motion fo r mistrial is abuse of discretion.

United States v. Rocha

, 916 F.2d 219, 234 (5th Cir. 1 990), cert.

denied , 111 S. Ct. 2057 (1991).

We will reverse a conviction for prosecutorial misconduct only12 On March 28, 1991, the defendants filed a motion for new trial that

was denied by the district court. On July 10, 1991, the defendants filed a motion for new trial based upon newly discovered evidence. Since an appeal had already been filed, the district court declined to hear this second motion

for a new trial.

19 if the misconduct was so pronounced and persistent that it casts

serious doubts upon the correctness of the jury's verdict. U nited

States v. Carter

, 953 F.2d 1449, 1457 (5th Cir.), cert. denied

, 112

S. Ct. 2980 (1992). After considering the challenged comments made

during th e prosecution's closing arguments, we conclude that any

improper statements were insufficient to cast doubts upon the

jury's verdict.

More troubling is the defendants' argument that we should

order a new trial based upon newly discovered evidence. 12 One week

before his testimony, Zimmerman )) one of the original defendants

who had agree d to testify against the others ) ) informed the

prose cution that he had use cocaine some nine days earlier. The

prosecution did not inform the defendants of Zimmerman's admission.

It is undeniable that this impeachment evid ence falls under the

Brady rule. United States v. Weintraub , 871 F.2d 1257, 1260 (5th

Cir. 1989). The only question is whether the withheld information

was material, so as to requir e reversal of the defendants'

convictions.

Brady material that the prosecution improperly withholds will

require reversal "only if there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the

proceeding would have been different." U nite d States v. Bagley

,

473 U.S. 667, 682 (1985). "A 'reasonable probability' is a20

pro bability sufficient to undermine confidence in the outcome."

Id.

In this case, the def ense was plainly aware of Zimmerman's

history of drug and alcohol abuse before Zimmerman testified.

After holding a hearing outside the presence of the jury, the

district court held that the defendants could introduce evidence of

Zimmerman's drug use only as it related to his ability to recall

the events leading up to the criminal indictments. During the

course of that hearing, Zimmerman admitted to using cocaine about

ten days earlier. Under the district court's evidentiary ruling ) )

which is not challenged by the defendants ) ) the evidence of

Zimmerman's drug use immediately before trial would not have been

allowed. Since the defense would not have been allowed to

introduce the evidence, it cannot be said that there is any

possibility that the result of the trial would have been different

had this evidence been disclosed to the defense.

E. Sufficiency of the Evidence

Finally, Elledge argues that the evidence was insufficient to

support his conviction for knowi n gly transporting a hazardous

waste. The standard of review for a sufficiency of the evidence

challenge is a familiar one. We will only reverse if, when viewing

the evidence in the light most favorable to the verdict, we

nonetheless concludes that no reasonable trier of fact could have

found that the government proved each element of the crime beyond

a reasonable doubt. U nited States v. Lopez-Escobar

, 920 F.2d 1241,13 Although our disagreeing brother insists upon styling his separate

opinion a "dissent in part," he agrees with the reasoning of all but part II.A.2 and with the result reached by the panel majority, i.e., to affirm the

convictions in toto . Thus, the separate writing more properly should be labeled a special concurrence. See United States v. X-Citement Video

, 982 F.2d 1285, 1292 n.* (9th Cir. 1992) (Kozinski, J., "dissenting in part") ("Strictly speaking, this is a concurrence, because I too would reverse [the defendant's] conviction . . . . I style it a dissent, however, because I would avoid striking down an Act of Congress . . . .").

21 1245 (5th Cir. 1991).

Elledge claims that the evidence was insufficient to show that

h e knowingly arranged for the transportation of hazardous waste.

According to Elledge, he was unaware that the drums contained waste

material. Elledge argued that he thought the drums contained

usable product that was being returned to the manufacturer.

If the jury had accepted his argument, Elledge would have been

acquitted. Unfortunately for Elledge, however, "[a] jury is free

to choose among reasonable constructions of the evidence." United

States v. Bell

, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc),

aff'd , 462 U.S. 356 (1983). In this case, evidence was presented

that Elledge knew that the drums contained waste and that he was

attempting to dispose of that waste. The jury rejected Elledge's

version of the facts, and the evidence was sufficient to support

the jury's conclusion.

III. R ESPONSE TO S EPARATE O PINION

We respond now to the separate opinion 13 of o ur able

colleague. Judge Johnson's reliance upon U nited States v. Horsley

,

864 F.2d 1543 (11th Cir. 1989) (per curiam), as somehow contra

authority plainly reveals a basic misunderstanding of what is meant14 "An explanation `need not be quantifiable' provided that the intent

is not race-based." Moore v. Keller Indus. , 948 F.2d 199, 202 (5th Cir. 1991) (quoting United States v. Clemons , 941 F.2d 321, 325 (5th Cir. 1991)), cert.
denied , 112 S. Ct. 1945 (1992).

15 One of the cases Judge Johnson cites, Reynolds v. Benefield

, 931 F.2d 506 (8th Cir. 1991), emphasizes the importance of a potential juror's

characteristics that often are evaluated subjectively by the viewer:

It is well to note that feelings are not always expressed in words, and, indeed, may be clearly manifested by gestures and facial expressions. A grimace or stare may express hostility or displeasure quite as clearly as words shouted across a room. Much (continued...)

22 by what Judge Johnson calls "unsupported intuition" and "specific

articulable factors."

In Horsley

, after the defendant had made a Batson challenge to

the government's striking of a black veniremember, the prosecutor

answered, "I don't have any particular reason. I just got a

feeling about him as I have about Mr. Gonzalez and several others."

Id. at 1544 (footnote omitted). The court of appeals properly held

that this "obviously falls short of [ Batson 's] requirement." Id.

at 1546.

The problem in Horsley was that the attorney did not provide

any "specific articulable factor" that made the prospective juror

unsuitable. The possibility for pretext and subterfuge in such a

situation is obvious. Here, on the other hand, the attorney

articulated a specific characteristic about veniremember Station:

that she appeared to be a follower. Importantly, this was a trait

that )) if it existed )) the district court could obs erve as well

as could the attorneys. 14 Thus, the court had every opportunity to

evaluate not only whether, and to what extent, Station indeed was

a follower, 15 but, more importantly, al so to judge the demeanor15 (...continued)

literature may be found on interpreting "body language" as a fundamental and effective practice in the selection of a jury.

See, e.g. , 1 S. Schweitzer, Cyclopedia of Trial Practice § 144 (2d
ed. 1970); 5 Am. Jur. Trials § 65 (1966) (valuable information can be obtained by observing a juror's demeanor). It has been noted that the "body language method" of jury selection "looks to a juror's appearance, behavior, and non-verbal responses, since these are viewed as giving a truer picture than verbal answers."

T. Mauet, Fundamentals of Trial Techniques 32 (2d ed. 1988). It may also be relevant to note "the juror's attitude toward the lawyer." Id.

Id. at 512.

16 Of course, the ultimate question is not whether Station was a "follower," or even whether she would be a suitable juror or whether "followers" generally make suitable jurors. The ultimate question remained whether the attorney seeking to strike Station was doing so on the basis of (continued...)

23 and , consequently, the credibility of the attorney to determine

whether his proffered reason for striking Station was pretextual.

This is all that Batson requires. The ultimate decision for

the district court is not whether, in fact, the juror is splendidly

qualified for jury service, but whether the lawyer seekin g to

strike that juror peremptorily is telling the truth or, instead, is

engaging in purposeful racial discrimination.

The difference between the situatio n in H orsley and that in

the instant case perhaps is best summarized by Judge Johnson

himself:

Hostile facial expres sions and body language "can be

observed in the cour troom; therefore the truth or falsity of explanations of this k ind is subject to proof." B arfield v. Oran ge County , 911 F.2d 644, 648 (11th Cir. 1990), cert. denied , 111 S. Ct. 2263 (1991).

In contrast, an explanation based upon unsupported
intuition is "not subject to observation and not subject to proof." Id.

The truth vel non of whether Station was a "follower" was readily

"subjec t to proof" 1 6 ; more importantly, whether the attorney was16 (...continued)

race. The question of whether Station actually was a follower is relevant only as a means to test whether the lawyer's assertion that she was a follower (or, for that matter, the attorney's implicit opinion that followers do not make good jurors) was pretextual.

17 "We must accept the judge's credibility choice and affirm his finding

on these facts." Lance , 853 F.2d at 1181 (affirming denial of Batson challenge).

24 truthful in his stated reason for the strike also was "subject to

proof." Accordingly, the reason given in the case s ub judice

,

unlike that proffered in Horsley , comports with Batson , once that

reason was accepted by a district judge who had observed the

demeanor of the participants. 17

Judge Johnson, like the district court, misconstrues Batson

,

which states that

the prosecutor may not rebut the defendant's prima facie

case of discrimination by stating merely that he challenged jurors of the defendant's race on the assumption )) or his intuitive judgment ) ) that they

would be partial to the defendant because of their

shared race. . . . Nor may the prosecutor rebut the

defenda nt's case merely by denying that he had a discriminatory motive or "affirm[ing] [his] good faith in making individual selections."

476 U.S. at 97-98 (citations omitted). There is no prohibition of

all intuitive judgments, but only of the spec ific intuitive

judgment that members of a particular race are unsuited to jury

service in the case at hand.

As the Court pointed out, the attorney must do more than

merely assert his good faith; he "must give a `clear and reasonably

s pecific' explanation of his `legitimate reasons' for exercising

the challenges." I d. at 98 n.20 (citation omitted). The

"reasonably specific explanat ion," "need not rise to the level25

justifying exercise of a challenge for cause." I d. at 97 (citation

omitted). Nor is there any requirement that the attorney

articulate spe cific facts, in regard to the potential juror, in

giving his reason for exercising the peremptory strike.

In the case before us
, the attorney did much more than attest

to his good faith or state (as did the lawyer in Horsley ) merely

that he had a hunch, or intuition, about the potential juror. He

gave the reasonably specific reason that the juror was a follower

)) an assertion that was subject to verification, by the district

judge who observed the pr oceedings, as to both the juror's

characteristi cs and the attorneys' b ona fides in stating the

reason.

It is evident, therefore, that we do not today endorse what

Judge Johnson calls "unsupported intuition" a s a ground for

peremptory strikes. The intuition here is supported by the

observation that Station was a "follower." This was an observation

that could have been challenged, for example, with the contention

that Station obviously was a leader, not a follower, or the

argument that white veniremembers who appeared to be followers were

not struck. Thus, the attorney's explanation meets Judge Johnson's

test, i.e., it is "a legitimate race-neutral explanation

. . .,

based upon a specific articulable fact that can be evaluated by the

trial court."

Finally, we do not find it necessary to respond to Judge

Johnson's charge that "[t]his is an example of result-ori ented

jurisprudence at its very worst." We observe only that Judge18 Though I agree with the majority's conclusion that the

convictions should be affirmed, I have styled this writing a "dissent in part" to emphasize my strong disagreement with the new rule adopted by the majority.

26 Johnson would reach the very same result, i.e., as he states, to

"affirm the judgment of the district court in all respects."

IV. C ONCLUSION

None of issues raised by the defendants warrants reversal.

The judgment of the district court is therefore AFFIRMED.

JOHNSON, Circuit Judge, dissenting:

In my view, except for Part II.A.2, the majority's per

curiam opinion is not only well-written but also almost entirely

correct. In Part II.A.2, however, the majority not only adopts

an incorrect view of the law, it then proceeds to ignore its

newly announced rule in order to affirm these two criminal

convictions. These two holdings are not only wrong, they are

totally irreconcilable. I must respectfully dissent 18

.

The Real Role of Intuition

The majority first goes astray in deciding whether, after a

prima facie Batson violation has been established, a district

court can ever find an attorney's unsupported intuition to be a

sufficient race-neutral reason for a peremptory strike. Contrary

to the majority's conclusion, the answer has to be a resounding

"No." The Eleventh Circuit long ago reached the correct answer

to this same question.27 Initially, we hold that the vague explanation offered by the prosecutor in the instant case was legally insufficient to refute a prima facie case of purposeful racial discrimination. While the reasons given by the prosecutor "need not rise to the level justifying exercise of a challenge for cause," see [Batson v. Kentucky , 476 U.S. 79, 97, 106 S. Ct. 1712, 1723 (1986)], the prosecutor must nevertheless "give a 'clear and reasonably specific' explanation of his 'legitimate reasons' for exercising the challenges." Id . at 98 n.20, 106 S. Ct. at 1723 n.20 (quoting Texas Dep't of Community Affairs v. Burdine , 450 U.S. 248, 258, 101 S. Ct. 1089, 1096, 67 L. Ed. 2d 207 (1981)). The prosecutor's explanation in the present case, "I just got a feeling about him," obviously falls short of this requirement. As the Batson court concluded, "If [such] general assertions were accepted as rebutting a defendant's prima facie case, the Equal Protection Clause 'would be but a vain and illusory requirement.'" Id . at 98, 106 S. Ct. at 1723 (quoting Norris v. Alabama , 294 U.S. 587, 598, 55 S. Ct. 579, 583-84, 79 L.Ed. 1074 (1935)).

United States v. Horsley , 864 F.2d 1543, 1546 (11th Cir. 1989);

see also Brown v. Kelly , 973 F.2d 116, 121 (2d Cir. 1992), cert.

denied , 113 S. Ct. 1060 (1993); United States v. Casper , 956 F.2d

416, 418 (3d Cir. 1992); Reynolds v. Benefield , 931 F.2d 506, 513

(8th Cir.), cert. denied , 111 S. Ct. 2795 (1991). In the instant

case, as in Horsley , the explanation offered for striking Lula

Station--that she seemed to be a follower--amounted to nothing

more than a hunch or "feeling" by some of the defense attorneys.

No specific, articulable factor, such as her parroting the

responses of others or averting eye contact, was advanced that

gave rise to this intuitive leap. Thus, the district court did

not err in finding that this explanation was legally

insufficient.

Unfortunately, the majority reaches a different conclusion--

holding instead that a prima facie case of discrimination can be

rebutted by intuition alone. According to the majority opinion,19 See Polk v. Dixie Ins. Co. , 972 F.2d 83, 85-86 (5th Cir.

1992) (peremptory strike based upon venireman's lack of eye
contact), cert. denied , 113 S. Ct. 982 (1993); United States v. Hinojosa , 958 F.2d 624, 631-32 (5th Cir. 1992) (failure to complete high school); United States v. Clemons , 941 F.2d 321, 324 (5th Cir. 1991) (age, dress, hairstyle); United States v.

Roberts , 913 F.2d 211, 214 (5th Cir. 1990) (disinterested demeanor, inattentiveness, involvement in political campaign of potential defense witness, statement that potential juror would not accept tape recordings as evidence, familiarity with a named
defendant), cert. denied , 111 S. Ct. 2264 (1991); United States

v. De La Rosa , 911 F.2d 985, 990 (5th Cir. 1990) (employment with church affiliated agency), cert. denied , 111 S. Ct. 2275 (1991); United States v. Romero-Reyna , 889 F.2d 559, 561 (5th Cir. 1989) (employment as pipeline operator), cert. denied , 494 U.S. 1084
(1990); United States v. Moreno , 878 F.2d 817, 820-21 (5th Cir.) (hostility toward police officers, age, marital status, unemployment, previous jury service, employment as commercial artist), cert. denied , 493 U.S. 979 (1989); United States v.

Terrazas-Carrasco , 861 F.2d 93, 95 n.1 (5th Cir. 1988) (same last name as someone previously convicted by prosecutor, age, eye contact, body language); United States v. Lance , 853 F.2d 1177, 1180-81 (5th Cir. 1988) (age, marital status, length of residency in the community, eye contact, demeanor); United States v. Cartlidge , 808 F.2d 1064, 1070-71 (5th Cir. 1987) (previous convictions, age, marital status, employment, acquaintance with (continued...)

28 this Court has repeatedly upheld peremptory challenges "based

upon intuition and other objectively unverifiable

considerations." This assertion simply cannot be squared with

the actual holdings of any of this Court's previous decisions.

What this Court has held is that it is permissible for the

process of choosing a jury to be influenced by the "intuitive

assumptions" of the attorneys. United States v. Lance , 853 F.2d

1177, 1181 (5th Cir. 1988). However, in every single case cited

by the majority , the intuitive assumptions of the attorneys

accepted by various courts have been based upon specific

articulable factors that were either disclosed by the prospective

jurors or observed in the courtroom. 19 Not one of the cases19 (...continued)

defense counsel).

20 See, e.g.

, Moore v. Keller Indus., Inc. , 948 F.2d 199, 202 (5th Cir. 1991) (age, familial relationships, appearance during questioning, responsiveness, background knowledge), cert.
denied , 112 S. Ct. 1945 (1992); United States v. Forbes , 816 F.2d 1006, 1009 (5th Cir. 1987) (legal troubles of family members, body language, hostility toward prosecutor); see also United States v. Hughes , 970 F.2d 227, 230 (7th Cir. 1992) (criminal record of cousin, lack of employment, children out of wedlock); Dunham v. Frank's Nursery & Crafts, Inc. , 967 F.2d 1121, 1123 (7th Cir. 1992) (employment as hairdresser, eye contact, familiarity with two potential defense witnesses); Williams v.

Chrans , 957 F.2d 487, 489 (7th Cir.) (answers to jury questionnaire, location and nature of employment), cert. denied

, 113 S. Ct. 595 (1992); United States v. Williams , 934 F.2d 847, 849 (7th Cir. 1991) (statements during voir dire, familiarity with the case, status as young, single mother); United States v.

Briscoe , 896 F.2d 1476, 1488 (7th Cir.) (previous employment at penal facility, history of criminal prosecutions, residence geographically close to defendants, victim of earlier armed violence where no charges were brought), cert. denied , 498 U.S.
863 (1990); United States v. Davis , 871 F.2d 71, 72 (8th Cir. 1989) (age, marital status, employment, residence, failure to answer questions on voir dire); United States v. Clemons , 843 F.2d 741, 748 (3d Cir.) (age, marital status), cert. denied , 488
U.S. 835 (1988).

29 cited by the majority can possibly be read to stand for the

proposition that a mere hunch by an attorney, with nothing more,

can ever be a sufficient race-neutral reason for a peremptory

strike. No support for the majority's position can be found in

any reported case in the Fifth Circuit or, for that matter, in

any other circuit since the day Batson was handed down. 20 In

every single case dealing with intuition or "intuitive

assumptions," any subjective judgments found to be acceptable

were based upon specific articulable factors or observations that

were subject to proof in the courtroom.

In short, the majority's conclusion that unsupported21 See United States v. Horsley , 864 F.2d 1543, 1546 (11th

Cir. 1989).

22 See Brown v. Kelly , 973 F.2d 116, 121 (2d Cir. 1992) (quoting statement from Horsley that mere feeling is not sufficient race-neutral explanation), cert. denied , 113 S. Ct.
1060 (1993); United States v. Casper , 956 F.2d 416, 418 (3d Cir. 1992) (quoting same statement from Horsley ); Reynolds v.
Benefield , 931 F.2d 506, 513 (8th Cir.) (accepting explanation for peremptory challenge based upon subjective judgment but noting that challenge was not purely subjective because it was based upon specific observations of venireman’s behavior and demeanor in the courtroom), cert. denied , 111 S. Ct. 2795 (1991).

30 intuition is a legitimate race-neutral explanation for a

peremptory strike is absolutely without support in reported case

law. The majority opinion also creates a square and

irreconcilable conflict with the Eleventh Circuit 21 and ignores

case law in the Second, Third, and Eighth Circuits strongly

suggesting that intuition can never be a legitimate race-neutral

explanation. 22 Yet in reaching its remarkable conclusion, the

majority never even acknowledges that anything unusual is afoot.

Evidently everyone else is out of step except the majority.

Although the majority opinion fails to appreciate the

distinction, there is a world of difference between subjective

"assumptions" based upon specific articulable factors and pure

hunches or "gut feelings." As our sister circuit has explained,

a strike based upon the attorney's perception of facial

expressions or body language is distinguishable from a strike

based upon intuition alone. Hostile facial expressions and body

language "can be observed in the courtroom; therefore the truth

or falsity of explanations of this kind is subject to proof."

Barfield v. Orange County , 911 F.2d 644, 648 (11th Cir. 1990),31

cert. denied , 111 S. Ct. 2263 (1991). In contrast, an

explanation based upon unsupported intuition is "not subject to

observation and not subject to proof." Id

.

The majority incorrectly asserts that the striking

attorney's assumption that Ms. Station was a follower is itself a

specific articulable factor. However, this is not a fact, but

rather a subjective judgment. Moreover, the majority

misconstrues the relevant inquiry when it states that the

assumption that Ms. Station was a follower is subject to proof.

It is not the appraisal that Ms. Station was a follower that must

be subject to proof, but rather it is the specific, articulable

basis giving rise to that judgment that must be subject to proof.

All that was provided here was an intuitive judgment with no

articulable factor giving rise to that appraisal.

To further illustrate the important distinction between

subjective assumptions based on articulable factors and pure

unsupported intuition, consider the case of United States v.

Romero-Reyna , 889 F.2d 559 (5th Cir. 1989), cert. denied , 494

U.S. 1084 (1990). This case features what has to be one of the

most ridiculous explanations ever offered for a peremptory

strike. In Romero-Reyna , the prosecutor explained that he struck

a potential juror who worked as a pipeline operator because he

never accepted a juror whose occupation began with a "P." Id . at

560. Although such an explanation is very likely to be found

pretextual, it would be a legitimate race-neutral explanation.

An attorney is allowed to make the intuitive assumption that23 In fact, in Romero-Reyna , the district court rejected

the prosecution's reliance on the "P rule" for just this reason. The peremptory challenge was upheld only after the prosecution also explained that the strike was also based upon the prevalence of marijuana use among pipeline workers. Id . at 561.

32 people in professions that begin with the letter "P" will be

prejudiced against his case. This assumption, however ridiculous

it may seem, is based upon a specific articulable fact that can

be evaluated by the trial court--namely, that the veniremember's

occupation began with the letter "P." Further, there is also the

possibility that the opposing attorney would be able to rebut

that explanation by pointing out white veniremen whose

occupations also begin with "P." 23

On the other hand, if intuition or a "gut feeling" alone is

a sufficient race-neutral explanation, how can either the

opponent or the trial court ever establish that the proffered

explanation is pretextual? The majority assures us that this is

really no different from other credibility choices that finders

of fact must make. If this is true, then why did the Supreme

Court in Batson specifically disallow a prosecutor's assertion of

good faith as a race-neutral reason? Such an assertion would

also require the same sort of "credibility choice" that so

inspires the confidence of the majority in the instant case. The

answer to this question should be obvious. The Batson Court

rejected "good faith" as a legitimate explanation for the very

same reason that this Court should reject unsupported intuition:

without some sort of articulable basis for the strike, no one--

whether finder of fact, opponent, or appellate court--has any way33

to decide whether the attorney is telling the truth. The Supreme

Court has recognized that allowing such an unprovable explanation

would make the Batson holding "'a vain and illusory

requirement.'" Batson , 476 U.S. at 98 (quoting Norris v. Alabama

,

294 U.S. 587, 598 (1935)). The only real way to rebut such an

explanation based on a "gut feeling" would be to show a history

of similar "gut feelings" about minority veniremen. Here, with

one stroke of the pen, the majority has effectively obliterated

Batson and returned this Circuit to the days of Swain v. Alabama

,

380 U.S. 202 (1965).

Selective Application?

The majority's holding--that an unsupported "gut feeling" is

sufficient to explain a peremptory strike--is bad enough. What

makes this decision even worse is that the majority then proceeds

to ignore its own holding in order to affirm these two criminal

convictions.

The main reason given by defense counsel for striking Lula

Station was that she seemed to be a "follower" instead of an

independent thinker. No specific basis for this impression was

ever articulated by the defendants' attorneys, and this

explanation was flatly rejected by the district court. Contrary

to the assertions in the majority opinion, it is clear from the

record that the district court felt that such a reason could

never be a legitimate race-neutral explanation for a peremptory

strike. The district court clearly stated that the "intuitive24 The district court stated:

Some things that are not considered to be neutral acts are as follows: denial of discriminatory motive, affirmance of his/her good faith of the defendant, nor intuitive judgment of the defendant's counsel will serve to form the non-discriminatory basis upon which the peremptory challenges have to be based.

Record, Vol. 13 at 159.

25 In language also quoted by the majority opinion, the

district court held

On Lula Station, the court cannot see any reason. Just telling the court that she is a follower clearly violates what the Supreme Court has stated that that is not a reason for merely excusing a juror. And the court finds that insofar as Ms. Station is concerned, the court finds that she was excluded solely because of her race, and therefore makes such a finding.

Record, Vol. 13 at 166. It is abundantly clear from this statement--and the rest of the district court's holding quoted in the majority opinion--that the district court felt that the defendant's explanation for striking Ms. Station was not a raceneutral explanation.

34 judgment of the defendant's counsel" could not be considered a

race-neutral explanation. 24 Also, the district court

specifically held that the explanation that Ms. Station was a

"follower" was not a valid reason for excluding a prospective

juror. 25 If, as the majority now holds, unsupported intuition is

a legitimate race-neutral reason for a peremptory strike, it

would seem obvious that the district court committed reversible

error. See United States v. Broussard , 987 F.2d 215, 221 (5th

Cir. 1993) ("The denial or impairment of the right to exercise

peremptory challenges is reversible error without a showing of

prejudice.").

Surprisingly, however, the majority affirms the convictions35

and reaches the remarkable conclusion that the district court did

"exactly as the law requires." While I would agree that the

district court applied the law as it should be, it is obvious

that the district court did not apply the law adopted today in

the majority's opinion. The majority cannot have it both ways.

If unsupported intuition is sufficient to rebut a prima facie

case of race discrimination in the exercise of peremptory

strikes, then the district court committed error and these

convictions should be reversed. There is simply no way to

reconcile the majority's holding with its decision to affirm the

convictions of the defendants. This is an example of resultoriented jurisprudence at its very worst.

C ONCLUSION

This writer would hold that an explanation based upon

unsupported intuition can never be a legitimate race-neutral

explanation for a peremptory strike, and accordingly, would

affirm the judgment of the district court in all respects.

Because the majority not only adopts an incorrect view of the

law, but also misapplies its own rule to the facts of this case,

I must dissent.