                                  ___________

                                  No. 95-2144
                                  ___________


James Gibson,                         *
                                      *
           Appellant,                 *
                                      *   Appeal from the United States
     v.                               *   District Court for the
                                      *   Eastern District of Missouri.
Michael Bowersox,                     *
                                      *
           Appellee.                  *

                                  ___________

                    Submitted:    December 15, 1995

                         Filed:   March 11, 1996
                                  ___________

Before MAGILL, BRIGHT, and MURPHY, Circuit Judges.

                                  ___________

MAGILL, Circuit Judge.


     James Gibson appeals the district court's1 denial of a writ of habeas
corpus under 28 U.S.C. § 2254, arguing that the state failed to prove every
element of his drug trafficking offense beyond a reasonable doubt because
it tested an inadequate sample of cocaine base, and that the state
impermissibly    used    peremptory    strikes     against   African-American
venirepersons.   We affirm.




     1
      The Honorable Jean C. Hamilton, United States District Judge
for the Eastern District of Missouri, adopting the report and
recommendation of the Honorable Catherine D. Perry, formerly United
States Magistrate Judge for the Eastern District of Missouri, since
appointed United States District Judge for the Eastern District of
Missouri.
                                             I.


     On May 23, 1991, St. Louis, Missouri police officers Mark Grman and
John Winter observed appellant James Gibson, an African-American, drop a
paper cup to the ground.      When asked by the officers to pick up his litter,
Gibson denied having dropped the cup.               Upon investigating, the officers
found that the cup contained pieces of what appeared to be cocaine base,
and placed Gibson under arrest.


     Gibson was tried before a jury in Missouri state court.                   During voir
dire, the state used all of its peremptory challenges to strike seven
African-Americans      from   the    jury,    giving       as   reasons   either   that   the
venirepersons had relatives who had been prosecuted or convicted for
criminal offenses, had work schedules which conflicted with jury service,
or equivocated over their ability to follow jury instructions.                       During
trial, the state presented evidence from criminalist Mary Taylor that a
sample of the material in the cup tested positive for the presence of
cocaine base, and that all of the material in the cup had a uniform texture
and color.    The total weight of the material in the cup was 3.69 grams,
although the piece tested by Taylor weighed less than 2 grams.                     The jury
convicted Gibson for trafficking drugs in the second degree, Mo. Rev. Stat.
§ 195.223.3(1) (possession of more than two grams of a substance containing
cocaine base), and he was sentenced to ten years imprisonment.                     Gibson's
conviction was affirmed on appeal to the Missouri Court of Appeals; see
State v. Gibson, 856 S.W.2d 78 (Mo. App. 1993).


                                             II.


     Gibson    first    argues      that   the     state    failed   to   prove    beyond   a
reasonable doubt that he possessed in excess of two grams of cocaine base,
because the sample tested by Taylor weighed less than two grams.                            On
collateral review of the evidentiary sufficiency of




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a state court conviction, we must determine "whether, after viewing the
evidence in the light most favorable to the prosecution, a rational trier
of fact could have found the essential elements of the crime beyond a
reasonable doubt."   Haymon v. Higgins, 846 F.2d 1145, 1146 (8th Cir. 1988)
(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).   In this case, the
state did not have to test every particle of the cocaine base to prove its
nature; indeed, "[p]roof of the existence of a controlled substance need
not be by direct evidence" at all, United States v. Meeks, 857 F.2d 1201,
1204 (8th Cir. 1988).     We have "affirmed the use of random testing to
establish that a substance contains cocaine base" for sentencing purposes,
United States v. Johnson, 944 F.2d 396, 404-06 (8th Cir.), cert. denied,
502 U.S. 1008 (1991), and hold that this method is also valid to prove the
elements of an offense.   The evidence presented to the jury in this case,
including the test results of a sample of the material possessed by Gibson
and testimony that all of the material was similar in texture and color,
was sufficient to prove that Gibson possessed in excess of two grams of
cocaine base beyond a reasonable doubt.


                                    III.


     Gibson next argues that the state violated Batson v. Kentucky, 476
U.S. 79 (1986), by striking African-Americans from the jury because of
their race.   We apply a three-part analysis to a Batson claim.   See Purkett
v. Elem, 115 S. Ct. 1769, 1770-71 (1995) (per curiam).        Assuming that
Gibson has made a prima facie case of racial discrimination, step one in
our analysis, we conclude that at step two the state successfully rebutted
that prima facie case by stating race-neutral reasons for its use of
peremptory strikes; see id. at 1771.   We note that, at this stage, a court
does not weigh the plausibility of the reasons given by the state, but
merely determines whether the reasons are facially race-neutral.       It is
only at step three that "the persuasiveness of the justification becomes
relevant--the step in which the trial court




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determines whether the opponent of the strike has carried his burden of
proving purposeful discrimination."             Id.   At this step, "implausible or
fantastic justifications may (and probably will) be found to be pretexts
for purposeful discrimination."           Id.    However, "the ultimate burden of
persuasion regarding racial motivation rests with, and never shifts from,
the opponent of the strike."       Id.     Whether a race-neutral explanation is
pretextual for discrimination is a question of fact, see Jones v. Jones,
938 F.2d 838, 841 (8th Cir. 1991), and in "habeas proceedings in federal
courts, the factual findings of state courts are presumed to be correct,
and may be set aside, absent procedural error, only if they are 'not fairly
supported by the record.'"     Purkett, 115 S. Ct. at 1771 (quoting 28 U.S.C.
§ 2254(d)(8)).      We conclude that the state courts' factual findings that
the state's racially-neutral reasons were not a pretext for discrimination
were amply supported by the record, and that the district court did not err
in denying Gibson's petition for a writ of habeas corpus.


      Accordingly, we affirm the judgment of the district court.


BRIGHT, Circuit Judge, concurring.


      I write separately to emphasize the crucial importance of the trial
judge's fact finding function as it relates to the Batson v. Kentucky, 476
U.S. 79 (1979), jurisprudence.        Preliminarily, it is well to recall the
underpinnings for limiting peremptory strikes in jury selection.               In Swain
v. Alabama, 380 U.S. 202 (1965), a case preceding Batson, the United States
Supreme Court recognized that "a State's purposeful or deliberate denial
to   Negroes   on   account   of   race    of    participation   as   jurors    in   the
administration of justice violates the Equal Protection Clause."                Id. at
203-204.   The Batson Court reaffirmed that principle.


      Additionally, the Court in Batson stated:




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           The harm from discriminatory jury selection extends
     beyond that inflicted on the defendant and the excluded juror
     to touch the entire community.      Selection procedures that
     purposefully exclude black persons from juries undermine public
     confidence in the fairness of our system of justice. . . .
     Discrimination within the judicial system is most pernicious
     because it is `a stimulant to that race prejudice which is an
     impediment to securing to [black citizens] that equal justice
     which the law aims to secure to all others.' Strauder [v. West
     Virginia], 100 U.S. [303], 308 (1880).


Id. at 87-88.


     Under Batson, once the defendant makes a prima facie case the
prosecutor (or proponent of the peremptory strike) must articulate a
neutral explanation relating to the case to be tried.      Id. at 98.   That
articulation must be "clear and reasonably specific".   See, id. at 98 n.20.
In the context of an objection to a peremptory strike, the court will
usually act with promptness, often at a bench conference outside the
hearing of the jury.


     The showing of pretext usually will not call for any evidence, but
rather argument and reference to the voir dire of the jury.      The reason
offered by the prosecutor or proponent of the strike need not be accepted
by the court at stage three (pretext) of the proceeding.


     As observed in Purkett v. Elem, 115 S. Ct. 1769 (1995), impossible,
fantastic, silly or superstitious justifications may and probably will be
found pretextual.   Id. at 1771.


     Where, as in this case, the proponent of the strikes utilizes all
seven peremptory challenges to strike African-Americans from the jury, a
fact finder could be justified in rejecting, as pretextual at stage three
of the proceedings, the race neutral reasons offered by the prosecutor.
Moreover, utilizing all peremptory challenges against minority persons
presumptively




                                   -5-
strikes at the very heart of the Batson rule--that a person shall not be
deprived   by   reasons   of   race    of    the   privileges   and   obligations   of
citizenship in serving as a juror.


     The seven African-Americans who were stricken may well have believed
that race underlay their rejection, regardless of the prosecutor's reasons
provided to the trial judge.          When a prosecutor utilizes all peremptory
strikes against only African-American citizens, the reasons offered will
often carry a hollow sound of pretext, and a trial judge might look at
these reasons with a jaundiced eye and reject them as pretextual.


     However, the state trial judge here honored the strikes in this case
and the Missouri courts approved of that action as not violative of Batson.
In a habeas case, the federal courts must presume such findings to be
correct if there is support in the record.            And, as noted by the opinion
of the majority, some evidence does support the strikes.                I would add,
however, that a contrary finding by the trial judge could have been easily
justified in the circumstances of this case.


     A true copy.


            Attest:


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




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