UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                     No. 95-5590
LERRY BLOTCHER, a/k/a Boogie, a/k/a
Larry Blutcher, a/k/a Troy Wilson,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Chief District Judge.
(CR-94-149-F)

Argued: May 10, 1996

Decided: August 7, 1996

Before WIDENER and MURNAGHAN, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed in part and remanded in part by unpublished per curiam
opinion. Judge Widener wrote a concurring and dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: William Webb Plyler, MCMILLAN, SMITH &
PLYLER, Raleigh, North Carolina, for Appellant. John Samuel
Bowler, Assistant United States Attorney, Raleigh, North Carolina,
for Appellee. ON BRIEF: Janice McKenzie Cole, United States
Attorney, Raleigh, North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

A jury convicted defendant-appellant Lerry Blotcher ("Blotcher")
of one count of conspiracy to distribute crack cocaine. Blotcher
appeals his conviction and sentence on various grounds. For the fol-
lowing reasons, we affirm in part and remand in part.

I.

A. The Arrest

Blotcher and his codefendant Bernard Hedgepeth engaged in the
wholesale distribution of crack cocaine in the Raleigh, North Carolina
area. On August 30, 1994, police surveillance of Blotcher and Hedge-
peth resulted in their arrest. After the police had witnessed the two
men engage in a number of activities suggesting drug-dealing, a
marked police car stopped a rental car that Blotcher was driving.
Hedgepeth, who was in the passenger seat, jumped from the car
before it stopped and ran across several lanes of traffic, throwing
away bags of crack cocaine and swallowing what he could not throw
away. Approximately 98 grams of crack cocaine were recovered from
the ground where they had been thrown and from Hedgepeth. Hedge-
peth also swallowed approximately one ounce of crack cocaine.

Because he had swallowed so much crack cocaine, Hedgepeth had
to be taken to the hospital to have his stomach pumped. The crack
cocaine affected his behavior such that he was very erratic and had
to be physically restrained to be treated. He also made many state-
ments while he was in that erratic state, including one about how he
had done the wrong thing and gotten his friend Blotcher in trouble.
He stated that Blotcher "didn't know anything about the cocaine." At
trial, however, Hedgepeth testified that he did not remember making
those statements. In cooperation with the government, he further testi-

                    2
fied that Blotcher knew about the drugs and that he and Blotcher had
been in the drug business together. Additionally, five drug dealers,
who had participated in drug dealings with Blotcher or had direct
knowledge of his drug dealing, testified as to Blotcher's drug-dealing
activities.

No drugs were found on Blotcher or in the rental car. No drugs
were found in the two apartments used by Blotcher and Hedgepeth.
The only evidence of drugs found at either apartment consisted of one
officer's testimony as to what he found in a kitchen sink. On a counter
beside the sink was baking soda, which is used to cook crack cocaine.
In the sink were a few white flakes in a milky white residue. The offi-
cer testified that the residue tested positive for cocaine in a field test
he conducted. He, however, used the entirety of the residue in the
field test so that there was no remaining portion to send to the labora-
tory for further more reliable chemical tests. The officer also threw
away the field-test kit he used, thus, it could not be examined by the
defense.

B. Voir Dire

At trial, during the first round of voir dire, the government did not
exercise any peremptories. Blotcher, who is black, however, chal-
lenged six jurors--all of whom were white. After the third challenge,
the government raised a Batson objection based on pattern.1 The court
allowed Blotcher's attorney to continue, with the government raising
a Batson objection after each strike. After the fifth strike of a white
juror, however, the court entertained the government's Batson chal-
lenge and asked Blotcher's counsel to state his reasons for striking the
five white jurors. Blotcher's counsel responded:"I've discussed it
with my client . . . [he] has told me that these are the people that he
does not want on his jury." The district judge responded that he would
let Blotcher finish all of his challenges and then return to the issue.

Blotcher continued with his challenges and dismissed an additional
white juror--six total. The district judge reminded Blotcher's counsel
that Batson cuts both ways and, therefore, requested explanations for
_________________________________________________________________

1 Batson v. Kentucky, 476 U.S. 79 (1986).

                     3
why Blotcher was exercising a peremptory strike as to each of the six
white jurors.

As to the first stricken juror, Blotcher recalled that she had made
a statement about her dislike of drugs. The court and the prosecution
accepted that reason. As to four of the jurors, Blotcher objected to
them because they were older and he felt, therefore, could not relate
with him as well as younger jurors. The court and prosecution
accepted that reason as well. As to the sixth juror, Harold Hedgepeth
(no relation to Blotcher's codefendant Hedgepeth), Blotcher sought to
strike him based on his appearance as a "conservative type" person.
The prosecution responded by arguing that there was nothing more
conservative about juror Hedgepeth's appearance than any other juror
on the panel. The district court agreed and simply refused to strike
juror Hedgepeth, finding that his appearance was not more conserva-
tive than any one else on the panel and that Blotcher's reason was not
rational.

Subsequently, after another round of jury selection in which Blot-
cher exercised three additional peremptory strikes, the court revisited
the Hedgepeth strike.2 The district court specifically found that juror
Hedgepeth was not dressed conservatively. The court explained that
juror Hedgepeth was wearing a sport shirt. The district court further
found that juror Hedgepeth was not older, a basis for four of the other
strikes. The court, therefore, found that Blotcher's explanation was
pretextual and lacked validity. Nonetheless, the court stated that it
would be glad "to make further inquiry" if Blotcher desired.

Blotcher's counsel attempted one more time to articulate a reason
for striking juror Hedgepeth. He explained: "He's got his hair kind of
nice and he's got nice glasses on." The government responded by
pointing out that no black jurors had been challenged, despite the fact
that some wore ties. Without addressing Blotcher's further elabora-
tion that juror Hedgepeth had his hair fixed nicely and wore nice
glasses, the court brought the matter to a close by simply finding
without further explanation that Blotcher's reason was pretextual.
_________________________________________________________________

2 The government did not challenge the three additional strikes.

                    4
C. Admission of Field-Test Results for Cocaine

Prior to evidence being received, Blotcher made a motion in limine
as to the narcotics field test conducted by an officer on the few white
flakes the officer allegedly found in the kitchen sink. The court
reserved on the issue. During trial, a chemist from the State Bureau
of Investigation testified that the color testing used in the field test
gives a valid preliminary indication of the presence of cocaine. On
that basis, the court ruled that the field test had sufficient validity as
indicating, although not conclusively, the presence of cocaine. The
district court also noted that the tests were commonly used. The test
results were also somewhat cumulative--a reasonable juror could
conclude that the white flaky residue found in the apartment was
cocaine based on the testimony of five individuals that Blotcher sold
cocaine and the fact that Blotcher used the apartment, even in the
absence of the field test.

The jury found Blotcher guilty of conspiracy to distribute crack
cocaine, but acquitted him of the distribution counts. The district
judge sentenced Blotcher to 235 months in prison. Blotcher appeals
his conviction and sentence.

II.

Blotcher seeks reversal of his conviction and sentence on three dif-
ferent grounds: (1) the refusal to strike juror Hedgepeth on whom he
sought to exercise a peremptory strike; (2) the admission of testimony
regarding a positive field test for cocaine in an apartment allegedly
used by Blotcher for his drug-dealing activities; and (3) the disparity
in his sentence for dealing crack cocaine versus what it would have
been if he had been dealing powder cocaine. We address each in turn.

A. Batson Challenge

A party to a lawsuit cannot exercise peremptory strikes on the basis
of race. See, e.g., Powers v. Ohio, 499 U.S. 400 (1991); Batson v.
Kentucky, 476 U.S. 79 (1986). It is a well-settled principle of consti-
tutional law that a criminal defendant's exercise of a peremptory jury
challenge on account of race, just as the use of a peremptory chal-

                     5
lenge based on race by the prosecution or a civil litigant, violates the
equal protection rights of the prospective juror and the opposing party
has standing to object in order to raise the excluded person's rights.
See generally, Georgia v. McCollum, 505 U.S. 42 (1992); Powers v.
Ohio, 499 U.S. 400 (1991); Jones v. Plaster , 57 F.3d 417, 420 (4th
Cir. 1995). Such an objection is commonly referred to as a Batson
challenge. See Batson v. Kentucky, 476 U.S. 79.

When a Batson challenge is made, the court must conduct a three-
part inquiry. First, the court requires the opponent of the challenge to
make out a prima facie case of racial discrimination. Second, if the
requisite showing is made, the burden then shifts to the proponent of
the strike to come forward with a race-neutral explanation for striking
the juror in question. The second step of the inquiry does not require
that the explanation be persuasive or even plausible. Purkett v. Elem,
115 S. Ct. 1769, 1770-71 (1995). The proffered reason "need not be
worthy of belief or related to the issues to be tried or to the prospec-
tive juror's ability to provide acceptable jury service." Jones, 57 F.3d
at 420. All that is required is that the reason be race-neutral. Purkett,
115 S. Ct. at 1791. Third, if steps one and two are met, the trial court
must then decide whether the explanation is pretextual and whether
the opponent of the strike has met its burden of proving purposeful
discrimination. Id. at 1770-71; Batson , 476 U.S. at 96-98. The ulti-
mate burden rests always with the opponent of the strike to demon-
strate purposeful discrimination.

The Batson three-step analysis, thus, requires a "finding of fact" as
to "discriminatory intent." Hernandez v. New York, 500 U.S. 352, 364
(1991). The findings of the district court turn largely on credibility
determinations and are, therefore, given great deference and reviewed
for clear error. Id.; Jones, 57 F.3d at 421. However, where the district
court fails to articulate adequately its findings, remand for further pro-
ceedings may be necessary. Jones, 57 F.3d at 421; see also United
States v. Joe, 928 F.2d 99, 103-04 (4th Cir.), cert. denied, 502 U.S.
816 (1991) (remanding where district court failed to make necessary
Batson factual findings).

Blotcher contends that the district court erred in its Batson inquiry
because it conflated steps two and three. He argues that the district
judge erroneously required his explanation at the second step to be

                     6
not merely race-neutral, but rational as well. Furthermore, he con-
tends that the prosecution failed to meet its burden of proving pur-
poseful discrimination.

In Purkett, the Supreme Court found that a court erred when it
combined the second and third steps into one. A court could not
require the explanation offered at the second step to be more than
race-neutral. The Court explained that the second step requires that
the party seeking to strike a juror do more than merely state he lacked
a discriminatory motive or merely affirm his good faith. Id. at 1771.
It requires the proponent of the strike to state a race-neutral reason.
The second step, however, does not require that the proponent of the
strike state "a reason that makes sense," but merely that the reason be
legitimate, i.e., not based on race. Id. To require more than a race-
neutral reason would be inconsistent with the principle that the ulti-
mate burden of persuasion rests with, and never shifts from, the oppo-
nent of the strike. Id. Only at the third step should the court evaluate
the persuasiveness of the justification. Id.

As described previously, the district court's Batson inquiry was
convoluted. We find the record so unclear that we cannot determine
whether the district court applied the proper legal analysis in sustain-
ing the prosecution's Batson objection to Blotcher's peremptory strike
against juror Hedgepeth.

While the district court clearly undertook some sort of Batson anal-
ysis, the record as it exists does not indicate that he properly went
through the required three-part analysis or reached the ultimate find-
ing as to whether the prosecution met its ultimate burden of proving
purposeful discrimination. The district court failed to make the requi-
site Batson findings. First, the district court failed to make a factual
finding as to whether a prima facie case was made.3 Second, the dis-
_________________________________________________________________
3 The failure to make a prima facie finding of discrimination is moot
where the proponent of the strike proceeds to offer a race-neutral reason
and the district court makes a ruling on the ultimate question of inten-
tional discrimination. Hernandez, 500 U.S. at 359. Here, Blotcher
offered a race-neutral reason, but the record is unclear as to whether the
district court correctly made the ultimate finding of intentional discrimi-
nation.

                    7
trict court failed to rule clearly on whether Blotcher's proffered rea-
son for striking juror Hedgepeth was race-neutral. There is no
statement or finding to that effect. The only finding by the district
court is that the reason proffered was not true, lacked validity, and
was pretextual. That sort of inquiry is inappropriate at the second
step. As explained earlier, the reason proffered by the proponent of
the strike need not even be worthy of belief, it need only be race-
neutral. Jones, 57 F.3d at 420.4

Finally, the record is unclear as to whether the district judge suffi-
ciently addressed whether the prosecution had met its ultimate burden
of proving that the strike was racially motivated. The district judge
found that Blotcher's alleged neutral reasons were pretextual and
lacked validity. He did not believe them. Pretextuality alone, how-
ever, does not automatically demonstrate purposeful discrimination.
St. Mary's Honor Center v. Hicks, 509 U.S. 510-11, 518-19 (1993)
(explaining in the Title VII context that once a prima facie case is
made and it is rebutted, "the fact finder must then decide not . . .
whether the evidence of rebuttal is credible, but whether" there has
been intentional discrimination); United States v. McMillon, 14 F.3d
948, 952 n.3 (4th Cir. 1994) (noting applicability of St. Mary's hold-
ing to the Batson inquiry). Thus, an ultimate fact finding of inten-
tional discrimination must be made. That factual finding is absent
from the record.
_________________________________________________________________
4 Furthermore, just as the Supreme Court observed in Elem that the
growing of long, unkempt hair is not particular to any race, 115 S. Ct.
at 1771, neither is the wearing of hair in a "kind of nice" way, the wear-
ing of "nice glasses," nor a generally conservative appearance particular
to any race. Those reasons are race-neutral. All the prosecution did to
rebut those reasons was indicate that every single juror on the panel was
neatly and well dressed and that there was nothing about juror Hedge-
peth's dress that indicated he was in any way more conservative than
anyone else on the panel. The district court agreed and found the reason
pretextual. The mere fact, however, that an acceptable juror possesses the
same characteristic as a juror a party seeks to strike does not in and of
itself mean that the reason is pretextual. The acceptable juror may have
possessed other desirable characteristics. Many factors, such as general
appearance, demeanor, education, employment, and others, may properly
enter into the jury selection process. United States v. Lane, 866 F.2d 103,
106 (4th Cir. 1989).

                     8
Based on the confusion in the transcript and the absence of the nec-
essary Batson findings, we remand for further proceedings in order
for the district court to clarify its ruling. See, e.g., Jones, 57 F.3d at
421-22.

B. Admissibility of Field Test

Blotcher challenges the testimony from an officer regarding the
results of the field test he conducted. Blotcher argues that the testi-
mony should not have been allowed because: (1) the government
failed to comply with Rule 16(a)(1)(C)(D)(E) of the Federal Rules of
Criminal Procedure regarding discovery; (2) the test itself was insuffi-
ciently reliable to meet the standards of Rule 702 of the Federal Rules
of Evidence; and (3) the prejudicial effect of the testimony out-
weighed its probative value in violation of Rule 403 of the Federal
Rules of Evidence.

1. Rule 16

Among Rule 16's requirements, the government must, upon the
defendant's request: (1) permit the defendant to inspect and copy doc-
uments and the like, which are in the government's possession and
material to the preparation of the defense; (2) permit the defendant to
inspect and copy any results of scientific tests, which are in the gov-
ernment's control and material to the preparation of the defense; and
(3) disclose to the defendant a written summary of testimony the gov-
ernment intends to use under Rule 702 of the Federal Rules of Evi-
dence. Fed.R.Crim.P. 16(a)(1)(C)(D)(E).

During discovery, Blotcher requested the government to disclose
the results and reports of any scientific tests and experiments, all
expert conclusions and analysis concerning any physical evidence,
and the name, address, and qualifications of any expert witness
intended to be called by the government. The government provided
the following statement from a detective's report:

          While searching the residence, Det. Sholar observed white
          powder residue in the kitchen sink and found a knife located
          on the kitchen counter. I witnessed Det. Sholar field test the

                      9
          white powder substance. The substance tested positive for
          cocaine.

Blotcher contends that Rule 16 was violated. He has not specified
what exactly he contends should have been turned over. The tran-
script of argument indicates that he objected to the absence of lab
reports and his inability to test the substance. There were, however,
no lab reports, nor was there any substance remaining for him to test
because the entirety of the small residue found in the sink was used
in the field test. The transcript further indicates that Blotcher objected
to the failure to notify him of "expert" testimony regarding the field
test. The government intended for detective Sholar to testify at trial
as to the results of the field test and Blotcher was on notice that
Detective Sholar had conducted a test which was positive for cocaine.
The government brought in an expert witness on the field test only
after Blotcher raised his motion in limine before trial and the district
judge indicated that under Rule 702 of the Federal Rules of Evidence,
he might need to examine the reliability of the field test. Thus, the
government did not violate Rule 16. Blotcher was on notice of the
only evidence relating to the field test that the government had or
intended to present at trial--Detective Sholar's testimony as to what
he found in the sink and the results of the field test he conducted.

2. Rule 702

Rule 702 provides that scientific, technical, and other specialized
knowledge is admissible at trial if it "will assist the trier of fact to
understand the evidence or to determine a fact in issue." Fed.R.Evid.
702. The Supreme Court has set forth a two-part test that must be met
for scientific evidence to be admissible under Rule 702--the trial
judge must ascertain that the evidence is (1) relevant and (2) reliable.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590-91
(1993). Reliability must be based upon scientific validity of some
sort, depending on what the evidence seeks to demonstrate and vari-
ous other factors. Id. at n.9.

The Fourth Circuit has explained the Daubert test as requiring: (1)
that "the expert testimony must consist of `scientific knowledge'--
that is, the testimony must be supported by appropriate validation,
and (2) the evidence or testimony must `assist the trier of fact to

                     10
understand the evidence or to determine a fact in issue.'" United
States v. Powers, 59 F.3d 1460, 1470-71 (4th Cir. 1995) (citing
United States v. Dorsey, 45 F.3d 809, 813 (4th Cir.) (quoting
Daubert, 509 U.S. at 590-91), cert. denied , 115 S. Ct. 2631 (1995)),
cert. denied, 116 S. Ct. 784 (1996) (emphasis in original). The types
of factors that trial courts should consider when evaluating scientific
validity are: (1) whether the theory or technique used by the expert
can be, and has been, tested; (2) whether the theory or technique has
been subjected to peer review and publication; (3) the known or
potential rate of error of the method used; and (4) the degree of the
method's or conclusion's acceptance within the relevant community.
Powers, 59 F.3d at 1471. The inquiry, however, is a flexible one
which depends greatly on the type of evidence and what it is offered
to demonstrate. We review a district court's determination to admit
evidence under Rule 702 for abuse of discretion. Id.

During trial, the district court conducted an examination of a state
bureau of investigation forensic chemist in order to determine the reli-
ability of the field test. The chemist testified that the field test con-
sisted of a glass vial containing two ampules--one of liquid and one
of acid. When a substance is placed in the vial, the ampules are bro-
ken. If the liquid turns blue, the test "may indicate the presence of
cocaine." The test is commonly used nationwide by police officers in
the field. An identical test is often conducted in the laboratory. How-
ever, such color tests are nonspecific. Thus, the particular field test is
not a conclusive indication of cocaine, but rather merely an indication
that cocaine may be present. The expert considered such a test prelim-
inary, the type of test that gives some indication as to what other test
should be pursued to establish conclusive proof that a particular drug
is present.

The district court ruled that it would allow the officer who con-
ducted the field test to testify as to its results because the field test
was customarily used by officers in the field and reliably (although
not conclusively) indicated the presence of cocaine. The court also
reasoned that a reasonable juror could conclude that the substance
was cocaine after five people testified that Blotcher distributed crack
cocaine and a police officer testified that he found a white substance
with pebbles in an apartment used by Blotcher, even without the test.
The court, therefore, found that the officer's testimony as to a field

                     11
test was admissible to the extent that it tended to confirm the presence
of cocaine.

To the extent there is a debate over the reliability of the particular
test at issue, those questions go to the evidence's weight, not its
admissibility. Thus, we conclude that the district court's admission of
the police officer's testimony regarding the results of his field test
was not an abuse of discretion. Cf. United States v. Paiva, 892 F.2d
148, 160 (1st Cir. 1989) (allowing detective with experience in nar-
cotics unit to testify as expert under Rule 702 that in his opinion the
substance he field tested was cocaine).

3. Rule 403

Blotcher also argues that the testimony violated Rule 403 of the
Federal Rules of Evidence in that its prejudicial effect outweighed its
probative value. As long as the test is scientifically admissible, the
probative effect of its results tending to confirm the presence of
cocaine is quite strong. While the prejudicial effect is quite potent
also, it does not outweigh the probative value of the test results.

C. Disparity Between Crack Cocaine and
Powder Cocaine Sentences

Finally, Blotcher challenges the constitutionality of his sentence
under the equal protection clause. He argues that the disparity in sen-
tences between those imposed on individuals convicted of dealing
cocaine powder versus those convicted of dealing crack cocaine vio-
lates his constitutional rights. He relies on a recent report by the
United States Sentencing Commission which concludes that the dis-
parity is not rational. We have previously considered those same
arguments and rejected them, finding that the sentencing commission
report has no effect on our earlier holding in United v. Thomas, 900
F.2d 37, 39-40 (4th Cir. 1990), that Congress could have rationally
concluded that the disparity was justified. United States v.
Hayden,___ F.3d ___, ___, 1996 WL 287799 (4th Cir. May 31,
1996).

For the foregoing reasons, we affirm Blotcher's conviction and
sentence as to all grounds he has raised on appeal, with the exception

                    12
of the district court's refusal to allow him to exercise a peremptory
strike on juror Hedgepeth. As to that refusal, we remand for further
clarification.

AFFIRMED IN PART AND REMANDED IN PART

WIDENER, Circuit Judge, concurring and dissenting:

I concur in the opinion so far as it affirms the conviction and sen-
tence as to all grounds except the district court's refusal to allow Blot-
cher to exercise a peremptory strike on juror Hedgepeth.

I also concur that the case should be remanded. Where I part com-
pany is that I think the conviction should be vacated on account of the
Hedgepeth strike and a new trial granted.

Blotcher told his attorney, in giving a reason for the peremptory
challenge of Hedgepeth that:

          Mr. Hedgepeth, he simply says appears to be a very-- just
          from his appearance, a conservative person.

****

          But from his appearance, he would appear to be a conserva-
          tive type person, which we believe would not be the best
          juror in this case for him.

The government objected on the ground that "There is nothing about
Mr. Hedgepeth's dress that is in any way more conservative than any-
one else's on that jury."

At that time there were four black people and eight white people
on the jury. The court left Hedgepeth on the jury, stating: "Well, I
don't see any rational reason for getting Mr. Hedgepeth off."

The court noted that Hedgepeth was not dressed conservatively
because: "He has a sport shirt on." But the defendant's attorney
responded that Hedgepeth has ". . . got his hair kind of nice and he's

                     13
got nice glasses on." The government entered the argument with the
comment that "Not one single black juror has been struck by the
defendant regardless of the fact that some of them have ties on," thus
revealing the real basis for the government's objection. It wanted to
bar Blotcher from striking any more white jurors.

The court held that "Comments that he [Blotcher] made concerning
not wanting conservative people was [sp] pretextural." With that, the
matter was dropped, Blotcher was convicted, and this appeal is the
result.

I think that Blotcher wanting to strike the people on the jury who
appeared to him to be conservative was not pretextural. Everyone on
the jury was "neatly and well dressed" according to the government's
attorney. So the striking of any other white juror, except perhaps the
most conservatively dressed on the whole jury, would have been error
according to the rule we apply in this case.

The record simply does not show the objection was pretextural,
which I think is required.

                    14
