Opposition Brief — Dennis v. United States

Nos. 8 , 86-6209, 86-6336, and

gupreiie Spur, U.S,

psi a LED

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6-1438

14 987

In the Supreme Court of the Hnifed Ss ates

OCTOBER TERM, 1986 oS tay a

BoBBY Roy DENNIS, SR., PETITIONER

V.

UNITED STATES OF AMERICA

SHARON DENISE COHEN, PETITIONER

v.

UNITED STATES OF AMERICA

BRENDA JEWELL HURLEY, PETITIONER

v.

UNITED STATES OF AMERICA

CLARENCE BOBBY JENNINGS, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

CHARLES -FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

GLorRIA C. PHARES

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the district court committed reversible error

by failing to require the jury to return a special verdict

specifying the controlled substances that were the objects of

a distribution conspiracy, when there was overwhelming

evidence that the conspiracy charged and proved included

among its objectives the distribution of heroin and cocaine,

and the defendant was convicted of substantive counts of

possession of heroin and cocaine with intent to distribute

them (No. 86-6336).

2. Whether petitioners established a prima facie case,

under Batson v. Kentucky, No. 84-6263 (Apr. 30, 1986),

that the prosecutor had improperly exercised his peremp-

tory challenges (Nos. 86-1438, 86-6209, and 86-6544).

3. Whether the district court abused its discretion when,

after both sides indicated satisfaction with the jury, the

court refused to strike the entire jury panel or to resume

_questioning the jurors about the effect on them of responses

given by other, excused veniremen (Nos. 86-1438, 86-6209,

and 86-6544).

(I)

TAS6LE OF CONTENTS

Page

ae is og EAs ad X46 ceded ence ean I

EE ES PD Ce 2

rece eps bas ke W'sk pecs ee deveesses 2

Cee Tce tae eekh tb ddeneashacevenesenss 9

a a 18

TABLE OF AUTHORITIES

Cases:

Aldridge v. United States, 283 U.S. 308

ED Sout 5.666 Rhode Kaba bees es 16

Arlington Heights v. Metropolitan Housing

SU EP OE EESTED cece ccccvsetccess 15

Batson v. Kentucky, No. 84-6263

| Er ere 8, 12, 13, 14, 15

Beasley v. United States, cert. denied,

ED occ ecbacdadadcessesess 9

Brown v. United States, 299 F.2d 438

(D.C. Cir.), cert. denied, 370 U.S. 946

EE EIA Pe ee a 11, 12

Flem iis v. Kemp, 794 F.2d 1478

i coin treme beseseek ob od ne —< oe

Griffith v. Kentucky, No. 85-5221

I ee re er 12, 14, 15

Jeffers v. United States, 432 U.S. 137

RS SU ee re 2

Patriarca v. United States, 402 F.2d 314

(Ist Cir. 1968), cert. denied, 393 U.S.

eee) |, A cee 16

IV

Page

Cases—Continued:

People v. Motton, 39 Cal. 3d 596,

704 P.2d 176, 217 Cal. Rptr. 416 (1985) ...... 13

Rosales-Lopez v. United States,

i ee, tne 16

Swain v. Alabama, 380 U.S. 202 :

SE a ba Aa ee wre eae ee ie kA aes 8, 13, 15

United States v. Berick, 710 F.2d 1035

(Sth Cir. 1983), certs. denied, 464 U.S.

899 and 464 U.S. 918 (1983) ................ 10

United States v. Corbin, 590 F.2d 398

Age Peery ee eee eee eu we 16

United States v. David, 803 F.2d 1567

Se EE, cb d's do oe ead 0 0'o 15, 16

United States v. Gibbons, 607 F.2d 1320

STR NE a rg ar rR o's win dew oes 16

United States v. Lewis, 676 F.2d 508

(11th Cir.), cert. denied, 459 U.S.

I a ee a we ew 10

United States v. Lopez- Martinez,

725 F.2d 471 (9th Cir.), cert. denied,

a Oe ga wh in heed da eeneees 10

United States v. Montelongo, 507 F.2d 639

eR Ee ee a ae 16

United States v. Morales, 577 F.2d 769

Se i Gas oa 10

United States v. Normandeau, 800 F.2d 953

ee es 1) nce ba 0 eked a oe OE eke hl 10

Page

Cases—Continued:

(7

United States v. Orozdo- Prada,

732 F.2d 1076 (2d Cir. 1984) ............4.. 11

United States v. Pennell, 737 F.2d 521

(6th Cir. 1984), cert. denied, 469 U.S.

th ft. -) Pee eeeeeer ere TP eee reer reer are 16

United States v. Peters, 617 F.2d 503

L* -, Sewrereryerrerrrrecrrrers 11

United States v. Quicksey, 525 F.2d 337

(4th Cir. 1975), cert. denied, 423 U.S. 1087

CDPD cnkacdcveediahseteeweeetaseansas 11, 12

United States v. Tegzes, 715 F.2d 505

{tl Lee. ¢) epepeerree rer rr rrr rerrers 16

Wisniewski v. United States, 353 U.S. 901

(1957) 2. cccescceccssccncccnccccccnccees 16

Statutes:

Pub. L. No. 98-473, 98 Stat. 1837:

§ 224(a), 98 Stat. 2030 ...........-- ee eee 6

§ 235, 98 Stat. 2031-2032 ............200e- 6

ERS og rear rr re irre rr 3

rig ke a re PPPOE em or eo

ypifil Fol | rere rrrrrry TT Tes. | 9, 10

21 U.S: BOM) occ accccciscresanoas 2, 3, 0

rj aie. toe | | wwrrrrrrerr rrr ses 10, 11

21 U.S.C. B41(DM IMA) 2.2... ccc cc ccccceccnce 6,9

ee rrr 6,9

Statutes Continued:

21 U.S.C. 843(b)

21 U.S.C. 846 ..

21 U.S.C. 848 ..

Vi

In the Supreme Court of the United States

OcTOBER TERM, 1986

No. 86-1438

BosBy Roy DENNIS, SR., PETITIONER

Vv.

UNITED STATES OF AMERICA

No. 86-6209

SHARON DENISE COHEN, PETITIONER

V.

UNITED STATES OF AMERICA

No. 86-6336

BRENDA JEWELL HURLEY, PETITIONER

V.

UNITED STATES OF AMERICA

No. 86-6544

CLARENCE BOBBY JENNINGS, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

' IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (86-6336 Pet. App. A)

is reported at 786 F.2d 1029 and, as amended, at 804 F.2d

1208.

a a ne

2

JURISDICTION

The judgment of the court of appeals was entered on

April 14, 1986. A petition for rehearing was granted in part

on November 24, 1986, and a suggestion for en banc consid-

eration was denied on December 24, 1986. The petition for a

writ of certiorari in No. 86-1438 was filed on February 21,

1987: in No. 86-6209, on January 17, 1987; in No. 86-6336,

on February 9, 1987; and in No. 86-6544, on February 25,

1987. The petition in No. 86-6544 is therefore out of time

under this Court’s Rule 20.1. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Following a jury trial in the United States District

Court for the Middle District of Florida, petitioners were

convicted on a number of related narcotics charges. All four

petitioners were convicted on one count of conspiring, in

violation of 21 U.S.C. 846, to possess heroin, cocaine, mari-

juana, and talwin with intent to distribute them, in violation

of 21 U.S.C. 841(a)(1) (Count 1).' In addition, petitioner

Dennis was convicted of operating a continuing criminal

enterprise, in violation of 21 U.S.C. 848 (Count 7).2 He was

also convicted on 15 substantive counts of possession of

heroin and cocaine with intent to distribute them, in viola-

tion of 21 U.S.C. 841(a)(1) (Counts 2, 3, 6, and 8 through

19) and on one count of using the telephone to facilitate the

conspiracy, in violation of 21 U.S.C. 843(b) (Count 5). He

was sentenced to a total of 44 years’ imprisonment and was

fined $50,000.

\Talwin is a Schedule IV controlled substance that is used in the

manufacture of synthetic heroin.

2The district court vacated petitioner Dennis's conviction on Count |

in light of his conviction on Count 7. 86-6336 Pet. App. 1037 n. 5; see

Jeffers v. United States, 432 U.S. 137, 148-150 (1977) (opinion of

Blackmun, J.).

nT |

3

Petitioner Cohen was also convicted on one substantive

count of possession of heroin, cocaine, and marijuana with

intent to distribute them, in violation of 21 U.S.C. 841(a)(1)

(Count 10); and on one count of making a false statement

before a grand jury, in violation of 18 U.S.C. 1623 (Count

21). She was sentenced to concurrent ten-year terms of

imprisonment on Counts | and 10, and a consecutive one-

year term of imprisonment on Count 21. 86-6336 Pet. App.

1032, 1040 n.14.

Petitioner Hurley was also convicted on four counts of

possession of controlled substances with intent to distribute

them, in violation of 21 U.S.C. 841(a)(1) (Counts 9 through

11 and 16). Those counts included counts charging her with

possession of cocaine and heroin with intent to distribute

them. She was sentenced to five concurrent four-year terms

of imprisonment. 86-6336 Pet. App. 1032, 1038, 1040 n.14.

Finally, petitioner Jennings was convicted on three

counts of possession of controlled substances with intent to

distribute them, in violation of 21 U.S.C. 841(a)(1) (Counts

15 through 17). Those counts included counts charging the

possession of cocaine and heroin with intent to distribute

them. Jennings was also convicted on one count of making

a false statement before a grand jury, in violation of 18

U.S.C. 1623 (Count 20). He was sentenced to a seven-year

term of imprisonment on Count 1; a consecutive one-year

term of imprisonment on Count 20; and five-year terms of

imprisonment on each of Counts 15 through 17, to run

concurrently with each other but consecutively to the terms

on Counts | and 20. 86-6336 Pet. App. 1032, 1038, 1040

n.14.

The evidence at trial showed that, from early 1979

through June 1984, petitioner Dennis and co-defendant

Johnny Bernard McClenton jointly supervised and con-

trolled. a massivé and highly lucrative narcotics distribution

4

enterprise (86-6336 Pet. App. 1032, 1039 n.13).3 The enter-

prise enlisted the assistance of a number of young women

who packaged and stored drugs in their homes or apart-

ments, frequently in return for payment of their rent or

household expenses. The organization also employed street-

level “lieutenants” who retrieved the packaged narcotics

from the homes where they were stored, and delivered them

to street-level sellers (id. at 1032). >

Petitioner Hurley stored marijuana, cocaine, and heroin

in her apartment for several months in 1982, and the enter-

prise operated out of that location at the time. Petitioner

Cohen was a street-level seller and sold cocaine and heroin

out of her home. Petitioner Jennings was a street-level

lieutenant. 86-6336 Pet. App. 1032.

2. a. Petitioners are black. The government exercised

three of the six peremptory challenges it was allowed during

the selection of the jurors who decided the case, using two to

challenge blacks. The government exercised one of the two

peremptory challenges it was allowed during selection of

the alternates, using that challenge to strike a black. 86-6336

Pet. App. 542. In each instance, defense counsel requested

that the district court inquire into the government’s reasons

for striking the prospective jurors to determine whether the

prosecutor was exercising his peremptory challenges on the

basis of race (id. at 541). Those requests were denied (ibid.).

Two black women were eventually seated on the jury that

convicted petitioners (86-6336 Pet. App. 542-543). None of

the defense counsel made a claim that the prosecutor was

striking jurors based on their gender.

’McClenton pleaded guilty and testified for the government at trial

(86-6336 Pet. App. 1032).

5

b. The district court conducted a lengthy voir dire exam-

ination of the panel of prospective jurors. A principal area

of inquiry was the extent to which potential jurors had been

exposed to and affected by pretrial publicity about the case.

In addition the court inquired whether any panel member

felt he might not be able to give petitioners a fair trial as a

result of his opinions about illicit drugs. 86-6336 Pet. App.

1042. Five jurors indicated that they might not be able to

render an unbiased decision. The child of one venireman

had been murdered in a drug killing; the child of another

had died of a drug overdose; and the daughter of a third was

a drug user. /d. at 1042, 1043. A fourth venireman explained

that his bias stemmed from seeing the effects of drugs on his

co-workers, and the fifth stated that, from “experience that

I would care not to discuss right now,” he did not think he

could be unbiased (id. at 1043). The five were excused for

cause.

The court continued its examination of the venire to

determine whether any member would have difficulty

honoring the presumption of innocence and requiring the

government to prove its case beyond a reasonable doubt.

The court also asked whether the jurors would decide the

case in accordance with the instructions on the law that the

court would give. Whenever any juror revealed anything

suggesting possible bias, the court followed up with specific

questions directed at determining the nature and extent of

any possible bias on that juror’s part. After both sides had

accepted the jury and the jurors had been excused for the

day, petitioners moved to strike the entire panel because of

_ the assertedly prejudicial effect on the panel of the state-

ments made by the five excused veniremen. Alternatively,

they requested further examination of the jurors to deter-

mine the prejudicial effect of the statements. The district

court denied the motion and conducted no further exami-

nation of the jury regarding the impact of the statements of

the veniremen. 86-6336 Pet. App. 1043.

6

3. Petitioners raised 11 issues on appeal (86-6336 Pet.

App. 1033, 1049). They claimed, among other things, that

the district court had erroneously denied the request of

petitioners Hurley and Dennis (not joined by petitioners

Jennings and Cohen) for a special verdict on Count | so that

the jury could specify which drugs it found to be the objects

of the distribution conspiracy. Petitioners argued that it

was not clear what drugs the jury had concluded were the

objects of the conspiracy, and that it was therefore error for

the district court (1) to refuse to strike statements in peti-

tioner Hurley’s presentence report, which would affect her

parole guidelines, that she had been convicted of participat-

ing in a heroin and cocaine conspiracy, and (2) to impose on

petitioner Jennings a prison sentence on Count | that

exceeded the maximum five years allowed for a distribution

conspiracy whose only object is marijuana.‘ 86-6336 Pet.

App. 1037-1038.

Petitioners also argued that the district court abused its

discretion by not examining the veniremen individually to

determine the extent of any prejudice arising from the

responses of the five excused panel members. Finally, peti-

tioners contended that blacks, or black males, were uncon-

stitutionally excluded from the jury because the prosecutor

had used peremptory challenges to strike two black males

from the prospective jury and one black male alternate

without being required to state a racially neutral reason for

doing so. 86-6336 Pet. App. 1048.

‘At the time of petitioners’ offenses, in the absence of certain enhanc-

ing factors the maximum sentence for possession of mirijuana with

intent to distribute it was five years’ imprisonment and a $15,000 fine

(21 U.S.C. 841(b)(1)(B)), and the maximum sentence for possession of

heroin or cocaine with intent to distribute it was 15 years’ imprison-

ment and a $25,000 fine (21 U.S.C. 841(b)(1)(A)). The allowable penal-

ties for conspiracy to violate Section 841 are identical to the allowable

penalties for the substantive offenses (21 U.S.C. 846). The maximum

penalties for these offenses were increased in 1984 (Pub. L. No. 98-473,

Tit. Il, $$ 224(a), 235, 98 Stat. 2030, 2031-2032).

7

The court of appeals rejected all three claims. First, it

held that petitioners could not prevail on their special ver-

dict claim simply by showing that they were convicted on

conspiracy instructions that might permit the jury to return

a guilty verdict if the conspiracy did not involve heroin or

cocaine. It must also appear, said the court, that the evi-

dence would support such a construction of the jury’s ver-

dict. 86-6336 Pet. App. 1039. The court accepted petition-

ers’ argument that, as an abstract matter, the jury

instructions on the conspiracy count could be read to allow

the jury to convict them of the Count | conspiracy even if

the jury had not found that one of the objects of that

conspiracy was the distribution of heroin or cocaine (ibid.).

Looking at the jury’s verdicts on all the counts as well as the

evidence presented at trial, however, the court concluded

(id. at 1039-1040 (footnote omitted)):

[T]here can be no question that the single conspiracy of

which all the defendants were convicted was not a

conspiracy to distribute only drugs for which [the max-

imum sentence was] five years in prison * * *. Rather,

the evidence is overwhelming that the massive conspi-

racy charged and proved in this case included among

its objectives the distribution of heroin and cocaine.

* * * Further, appellants Jennings, Hurley and Cohen

were each convicted of substantive offenses involving

heroin and cocaine which appear clearly from the evi-

dence to have occurred pursuant to the distribution

conspiracy charged in Count One. * * * [W]e find it

clear beyond a reasonable doubt that, as the district

court concluded, the jury by its verdict found [petition-

ers] to have joined a conspiracy.to distribute heroin

and cocaine.

Second, the court of appeals held that the district court

used a reasonable procedure for testing the impartiality of

the prospective jurors. Moreover, the court held that the

8

statements of the five excused panel members were insuffi-

cient to require the court to conduct additional voir dire of *

the remaining members. Although acknowledging that the

statements might have heightened the remaining jurors’

awareness of the possible consequences of drug use, the

court concluded that they did not pose any threat to the

fairness and legality of petitioners’ trial. 86-6336 Pet. App.

1044.

Third, the court of appeals held that petitioners had not

established a prima facie case of purposeful discrimination

against blacks in the selection of the petit jury. The court

initially rejected petitioners’ claim on the basis that they had

not met the standard of Swain v. Alabama, 380 U.S. 202

(1965), while also noting that “we would find that [petition-

ers] have not made out a prima facie case of racial discrimi-

nation in the government’s use of its peremptory challenges

even if we were not foreclosed from considering such a

claim by Swain” (86-6336 Pet. App. 1049 & n.24). On panel

rehearing in light of this Court’s decision in Batson v.

Kentucky, No. 84-6263 (Apr. 30, 1986), the court held

squarely that petitioners had not made out a prima facie

case (86-6336 Pet. App. 542).° The court noted that such a

decision would ordinarily be made in the district court, but

a remand would not be necessary in this case, because the

record fell so far short of establishing a prima facie case that

a district court finding that petitioners had established a

prima facie case would constitute reversible error despite

the great deference owed to the trial court’s findings (id. at

542 n.22).

5As a threshold issue, the court of appeals held that the cognizable

racial group for purposes of this analysis was the group of all blacks,

and not just black males, as petitioners had urged (86-6336 Pet. App.

542).

9

ARGUMENT

The decision of the court of appeals is correct and does

not conflict with any decision of this Court or another court

of appeals. Further review is therefore not warranted.

1. Petitioner Hurley contends (86-6336 Pet. 5-8) that it

was error for the district court to deny her request for a

special verdict on Count | so as to determine the exact scope

of the conspiracy of which the jury convicted her.* Although

petitioner received a four-year sentence on Count |, less

than the allowable maximum for a conspiracy to distribute

marijuana alone, she nevertheless claims prejudice from the

absence of a special verdict, because the inclusion in her

presentence report of references to heroin and cocaine as

objects of the distribution conspiracy has resulted in

harsher parole guidelines governing her release (86-6336

Pet. 6).

For reasons stated in our brief in opposition in No.

84-409, Beasley \ United States, cert. denied, 469 U.S.

1188 (1985), a copy of which is being served on counsel, we

believe that it is not error for a trial court to deny a request

for a special verdict when an indictment charges a single

conspiracy with the objectives of distributing both drugs

covered by 21 U.S.C. 841(b)(1)(A) (15-year maximum) and

drugs covered by 21 U.S.C. 841(b)(1)(B) (five-year maxi-

mum). In brief, we think that the language, structure, and

legislative history of Section 841 suggest that the type of

controlled substance distributed by the defendant is not one

of the elements of a Section 841 offense that must be found

_ by the jury. Instead, the elements for jury determination are

described in Section 841(a), which in relevant part makes it

®Although petitioner Hurley states (86-6336 Pet. 6) that petitioners

Jennings and Cohen join in this argument, neither of those petitioners

cross-references the petition in No. 86-6336 or otherwise presents the

issue. Thus, we address only petitioner Hurley’s argument.

10

a crime simply to “possess with intent to * * * distribute

* * * a controlled substance.” Section 841(b) then sets out.

the sanctions to be applied by the district court when an

offense of the type described in Section 841(a) has been

proved; it establishes the range of penalties that may be

imposed for trafficking in various types of controlled sub-

stances. The nature of the substance involved therefore is

relevant only to the trial judge’s sentencing determination.’

The judgment below was therefore correct for the reason

(on which the court of appeals did not rely) that the trial

judge was right not to require a special verdict.

Nevertheless, even assuming that the district court should

have required a special verdict, the court of appeals cor-

rectly concluded that its failure to do so was not reversible

error in the circumstances of this case. That conclusion is

not in conflict with the decision of any other court of

appeals.

The record in this case leaves no doubt that the Count |

conspiracy included an objective to distribute cocaine and

heroin. First, some of the substantive possession counts on

which petitioner was convicted involved heroin and cocaine

only, and it is clear from the evidence that these substantive

offenses occurred pursuant to the distribution conspiracy

charged in Count |. Moreover, ‘the evidence was over-

whelming that the massive conspiracy charged and proved

in this case included among its objectives the distribution of

’This conclusion is consistent with the uniform holdings of the courts

of appeals that a defendant need not know the precise nature of the drug

he possesses in order to violate Section 841(a)(1), which refers only to “a

controlled substance.” E.g., United States v. Lopez- Martinez, 725 F.2d

471, 472-475 (9th Cir.), cert. denied, 469 U.S. 837 (1984); United States

v. Berick, 710 F.2d 1035,.1040 (Sth Cir. 1983), certs. denied, 464 U.S.

899 and 464 U.S. 918 (1983); United States v. Lewis, 676 F.2d 508, 512

(11th Cir.), cert. denied, 459 U.S. 976 (1982); United States v. Morales,

577 F.2d 769, 776 (2d Cir. 1978); see also United States v. Norman-

deau, 800 F.2d 953, 956 (9th Cir. 1986).

|

1]

heroin and cocaine. 86-6336 Pet. App. 1040. In light of the

evidence at trial and the unchallenged jury verdicts on the

substantive counts, the court of appeals was correct in

determining “beyond a reasonable doubt that * * * the jury

by its verdict found [petitioner] to have joined a conspiracy

to distribute heroin and cocaine” (ibid.).

Even on petitioner’s theory of the case (86-6336 Pet. 6-8),

there is no conflict among the courts of appeals. In United

States v. Orozco- Prada, 732 F.2d 1076 (2d Cir. 1984), for

example, there were no substantive possession convictions

that might have reflected the jury’s judgment that the con-

spiracy with which the defendant had been involved

included cocaine trafficking as one of its objects (732 F.2d

at 1083). Nor was there overwhelming evidence showing

that the conspiracy count included both cocaine and mari-

juana; marijuana was the only controlled substance for

which proof of at least one specific transaction was offered

(ibid.). Indeed, the Orozco- Prada court distinguished Uni-

ted States v. Peters, 617 F.2d 503, 506 (7th Cir. 1980), on

factual grounds equally applicable to this case: Peters had

been convicted of substantive drug offenses carrying 15-

year penalties, thereby evidencing the jury’s belief in his

guilt of conspiracy to commit those substantive offenses

(732 F.2d at 1084).

In United States v. Quicksey, 525 F.2d 337, 339-341 (4th

Cir. 1975), cert. denied, 423 U.S. 1087 (1976), and Brown v.

United States, 299 F.2d 438, 439-440 (D.C. Cir.), cert.

denied, 370 U.S. 946 (1962), the defendants were not

charged with conspiracies to distribute two or more drugs

_ treated differently under Section 841(b), but rather were

charged in a single count with conspiracies in violation of

two different statutes. It is far from clear that the Fourth or

D.C. Circuit would apply these cases in the present context.

Moreover, even if they would do so, those cases are not in

conflict with the decision below. Neither court remotely

12

suggested a rule of per se reversal that applies even when the

court of appeals examines the evidence and finds “beyond a -

reasonable doubt” that the defendant committed the more

serious of two conspiracies that theoretically could underlie

the jury’s general verdict.* In the absence of any such sug-

gestion, there is no disagreement among the circuits that

requires resolution by this Court.

2. Petitioners Dennis, Cohen, and Jennings all argue

(86-1438 Pet. 7-22; 86-6209 Pet. 17-22; 86-6544 Pet. 17-22)

that the district court’s denial of their request that the

prosecutor explain his decision to strike two blacks from

the jury and one black alternate conflicts with the Court’s

decisions in Batson v. Kentucky, No. 84-6263 (Apr. 30,

1986), and Griffith v. Kentucky, No. 85-5221 (Jan. 13,

1987). Petitioners are not entitled to rely on this claim

because they failed to make the threshold showing that

Batson requires to establish a prima facie case of purposeful

discrimination in the selection of the jury.

*Petitioner mischaracterizes the decision below as one in which the

court applied the standards of “traditional sufficiency of evidence

review” (86-6336 Pet. 8). The court below did not merely inquire

- whether the evidence was sufficient to support a verdict of conspiracy to

distribute cocaine or heroin. Rather, it upheld the judgment of the

district court only after noting that the evidence was “overwhelming,”

that the court was convinced “beyond a reasonable doubt” that the jury

had found such a conspiracy, and that petitioner had actually been

convicted of possession of heroin and cocaine with intent to distribute

them. The court of appeals thus took an approach far more akin to

“harmless error” review than to “sufficiency” review—an approach that

is not in any way inconsistent with the decisions in Quicksey and Brown.

‘In addition, petitioner Dennis argues (86-1438 Pet. 14-17) that the

court of appeals erred by rejecting his claim that the cognizable group

for purposes of Batson can be narrowed to include only black men. One

simple answer to this claim is that he did not raise this issue in the

district court at the time when the district court could have addressed it

and thus did not preserve the issue for review. In any event, the decision

of the court of appeals, on which we rely, correctly rejected this conten-

tion (86-6336 Pet. App. 542), and petitioner cites no authority that

13

Rejecting the “crippling burden of proof” (Batson, slip

op. 12) of Swain v. Alabama, supra, this Court in Batson

adopted a different test for establishing a prima facie case of

racial discrimination by the prosecutor in the selection of

the jury. Under the new test, a defendant must first show

that he is a member of a cognizable racial group (Batson,

slip op. 16). Second, he may rely on the presumption that

one who is inclined to discriminate will use peremptory

challenges to do so (ibid.). Finally, the defendant must show

that these factors and any other relevant circumstances

raise an inference that the prosecutor used the challenges to

bar veniremen from the jury on account of their race (ibid.).

This Court noted that, in evaluating the question, “the trial

court should consider all relevant circumstances,” includ-

ing, but not limited to, a “pattern” of strikes against black

jurors or questions and statements during voir dire that

reflect a racial basis for strikes (ibid.). Once a defendant has

made his prima facie showing, the burden then shifts to the

prosecutor to provide a neutral explanation for challenging

black jurors (ibid.).'°

supports it. Whatever the merits of People v. Motton, 39 Cai. 3d 596,

704 P.2d 176, 217 Cal. Rptr. 416 (1985) (en banc), it is a decision

interpreting a state constitution and in any case holds only that black

females are a “cognizable group.” That holding was based on “the fact

that black women face discrimination on two major counts—both race

and gender” (39 Cal. 3d at 606, 704 P.2d at 181-182, 217 Cal. Rptr. at

421-422). The holding therefore would contradict, rather than support t,

any contention that black men suffer similar double discrimination.

°Petitioner Dennis claims (86-1438 Pet. 17-18) that certain language

_ used by the court of appeals (86-6336 Pet. App. 542-543) departs from

Batson and requires the defendant to show that the prosecutor attemp-

ted to exclude ail blacks from the jury. The court of appeals did not so

hold. The court simply commented that it was “obvious that the

government did not attempt to exclude all blacks, or as many blacks as

it could, from the jury” (86-6336 Pet. App. 543). That observation was

not the basis for the court’s holding, but was merely one of the factors to

which the court looked in finding that petitioners had not met the

Batson requirement of showing a prima facie case based on “all relevant

circumstances” that one or more peremptory challenges had been exer-

cised on the basis of race.

14

As the court of appeals concluded, petitioners do not

meet the Batson test. The prosecutor used only two of his-

six peremptory challenges to strike blacks from the venire.

He used a third to strike a white prospective juror."

Although the prosecutor had three remaining challenges, he

did not use them to strike the two blacks who remained on

the jury that was sworn. These facts could not support an

inference that the prosecutor was trying in any way to

minimize the number of blacks on the jury.!?

Contrary to petitioner Dennis’s argument (86-1438 Pet.

19-20), nothing in Griffith v. Kentucky, supra, suggests

that the foregoing facts make out a prima facie case.'* The

prosecutor in Griffith (who had also been the prosecutor in

Batson, see Griffith, slip op. 12) had available five peremp-

tory challenges and used four of them to strike four of the

five prospective black jurors (id. at 2). The end result was an

all-white jury (ibid.). In the present case, the prosecutor had

available six peremptory challenges and used two of them

to strike two of the four prospective black jurors, forgoing

''The prosecutor also struck a black alternate.

'2Petitioner Dennis speculates *»<t one of the two black jurors struck

from the main jury might have be..: 4 desirable juror from the govern-

ment’s point of view because his mother had been a burglary victim, and

that the alternate juror challenged by the prosecutor might have been

“sympathetic to the prosecution” because he had been a burglary victim

and had testified as a government witness in other cases (86-1438 Pet.

7-8; see also 86-6209 Pet. 21; 86-6544 Pet. 21). The proposition that

either juror would, because of those experiences alone, be desirable

from the government’s standpoint in this drug prosecution is dubious to

begin with. In any event, it hardly follows from these factors that the

only (or likely) explanation for the challenges was the race of the jurors.

Any such inference, if it were tenable at all, would be severely undercut

by the prosecutor’s decision to forgo three of his allotted strikes and

accept two black jurors.

'3We assume for the sake of argument that the facts of Griffith

constituted a prima facie case, although the Court’s decision addressed

only the retroactivity of Batson.

nO LO i ARP a tm te

15

three of his challenges altogether. Two blacks sat on the

jury. The facts of this case simply are not comparable to the

facts of Griffith.

Petitioner Dennis’s apparent suggestion (86-1438 Pet. 20)

that a prosecutor must justify every single challenge of a

black juror is doubly flawed. First, it overlooks the fact

that, before the prosecutor is required to justify any of his

strikes, the defendant is required to make a prima facie

showing of discrimination, a showing that rarely will arise

from a single strike.

Second, it relies on a misreading of Batson. The Court

said that a “ ‘single invidiously discriminatory governmen-

tal act’ is not ‘immunized by the absence of such discrimina-

tion in the making of other comparable decisions,” ” while

making the point that since Swain the Court has recognized

that a defendant may make a prima facie case of discrimina-

tion by relying on the facts in his particular case rather than

necessarily comparing them to a pattern or practice of

discrimination in other cases (Batson, slip op. 15, quoting

Arlington Heights v. Metropolitan Housing Corp., 429

U.S. 252, 266 n.14(1977)). It does not follow, however, that

the record must show, without the defendant’s having first

established his prima facie case, an explanation for the

prosecutor's strike of each black venireman."*

Petitioner Dennis quotes (86-1438 Pet. 20-21) from the decision in

United States v. David, 803 F.2d 1567, 1571 (11th Cir. 1986), as if that

case stood for the proposition that a prosecutor must explain every

strike of a black venireman, without alluding to the defendant’s prior

burden to establish a prima facie case that the prosecutor has improp-

erly used race as a factor in the exercise of peremptory challenges. In

fact, however, David recognizes that the defendant must make out a

prima facie case of discrimination before any explanation is required.

In any event, if there were any tension between the decision below and

either David or Fleming v. Kemp, 794 F.2d 1478, 1484 (11th Cir. 1986),

it would be an intracircuit matter for the court of appeals to resolve. See

16

3. Petitioners Cohen and Jennings (86-6209 Pet. 3-16;

86-6544 Pet. 3-16) also claim that the district court erred —

when it refused petitioners’ request to strike the entire panel

or, in the alternative, to inquire of the prospective jurors

whether they were unduly prejudiced by the information

they had heard from the excused jurors regarding the effect

of drugs on their family members.

It is well settled that a trial judge has broad discretion

about how to conduct the voir dire examination. Rosales-

Lopez v. United States, 451 U.S. 182, 188-189 (1981) (opin-

ion of White, J.); Addridge v. United States, 283 U.S. 308

(1931). The court of appeals reviewed the record in this case

and found no abuse of discretion. Only the most extraordi-

nary circumstances would justify this Court in disturbing

that discretionary decision, and petitioners have cited

none.!®

Wisniewski v. United States, 353 U.S. 901, 902 (1957). It is notable that

petitioners’ suggestion for en banc consideration received no votes

among the judges of the Eleventh Circuit (86-1438 Pet. App. 87-88).

'5Petitioners do not claim a conflict among the courts of appeals, nor

is it important, as petitioners suggest (86-6209 Pet. 13-16; 86-6544 Pet.

13-16), that other district courts have handled voir dire in a different

manner when faced with similar, or even the same, voir dire issues. See

United States v. Pennell, 737 F.2d 521 (6th Cir. 1984), cert. denied, 469

U.S. 1158 (1985); United States v. Gibbons, 607 F.2d 1320 (10th Cir.

1979): United States v. Corbin, 590 F.2d 398 (ist Cir. 1979); United

States v. Montelongo, 507 F.2d 639 (Sth Cir. 1975); Patriarca v.

United States, 402 F.2d 314 (1st Cir. 1968), cert. denied, 393 U.S. 1022

(1969). The essence of committing a particular matter to the discretion

of the district court is that, within bounds of reason, two district courts

can resolve an issue in different ways, yet both resolutions will be

sustained on appeal. In any event, as it observed, the court of appeals

had previously found, on facts almost identical to those in this case, that

a situation such as the one in this case does not raise the specter of

potential prejudice so as to require the district court to ask additional

questions of the panel. 86-6336 Pet. App. 1044 (citing United States v.

Tegzes, 715 F.2d 505 (11th Cir. 1983)).

17

The voir dire in this case took place over two days. The

jurors who were excused for cause described their personal

experiences and were excused on the first day of voir dire.

At the time they were excused, counsel did not request

additional inquiry of the other panel members, and the

district court continued its voir dire, which included the

instruction that petitioners were presumed innocent until

proven guilty and that the presumption of innocence is a

guiding principle in the administration of justice. No juror

indicated that he would be unable to accord petitioners the

presumption of innocence or that he would vote for a guilty

verdict if the government had not proved its case beyond a

reasonable doubt. Further questions were directed to

uncovering any basis for doubting whether the jurors would

be able to decide the case in accordance with the court’s

instructions. No juror revealed any basis for suspecting bias

that was not immediately followed by additional questions.

At the end of the day, the jury was found acceptable to

both sides, and the court excused the jurors for the night,

directing them to return to be sworn the next day. Only at

that point, and after they had learned that a district judge in

another courtroom had struck a panel when the jurors who

had been excused in this case gave the same responses

during the selection of another jury, did defense counsel ask

for additional questions or to have the jury pane! struck.

The district court’s refusal to take either course was a legit-

imate discretionary judgment. To return to an issue that

had arisen the prior day and delve into the jurors’ reactions

to the excused veniremen’s responses was more likely to

enhance the risk of prejudice by drawing attention to the

comments. The district court’s refusal to do so was no abuse

of discretion and does not warrant further review.

18

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

GLORIA C. PHARES

Attorney

APRIL 1987

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