                             UNITED STATES of America, Plaintiff-Appellee,

                                                       v.
                              Loleta ALLEN-BROWN, Defendant-Appellant.

                                                No. 99-13688.

                                       United States Court of Appeals,
                                               Eleventh Circuit.

                                                March 9, 2001.

Appeal from the United States District Court for the Southern District of Florida. (No. 99-06044-CR-WJZ),
William J. Zloch, Chief Judge.

Before EDMONDSON and MARCUS, Circuit Judges, and RESTANI*, Judge.

         RESTANI, Judge:

         Appellant, Loleta Allen-Brown, seeks reversal of her conviction for importing cocaine and possession

with intent to distribute. Allen-Brown alleges that Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90

L.Ed.2d 69 (1986), does not apply in this case or that it was applied in an erroneous manner by the trial court.
We hold that the trial court properly inquired into the defense's utilization of peremptory challenges and that

Batson applies to race-based peremptory challenges made for the purposes of achieving a more diverse jury.

                                                    FACTS

1.       Course of Proceedings and Dispositions in the Court Below.
         On March 11, 1999, a federal grand jury in the Southern District of Florida returned a two-count

indictment charging appellant Loleta Allen-Brown with importation of cocaine, in violation of 21 U.S.C. §
952(a) (1994) and 18 U.S.C. § 2 (Count I), and possession with intent to distribute cocaine, in violation of
21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count II). The case proceeded to trial where a jury returned a

verdict finding Allen-Brown guilty as charged.

2.       Facts Pertaining to the Jury Selection Process.
         Following initial voir dire of thirteen seated prospective jurors, the government raised two challenges

for cause. Over defense counsel's objection, the district court excused one of the jurors, who was black, for
cause; the government then exercised a peremptory challenge to excuse the other, who was white. Jury

questionnaires indicate that of the eleven remaining seated jurors, ten were white. The defense then attempted



     *
     Honorable Jane A. Restani, Judge of the U.S. Court of International Trade, sitting by designation.
to remove six white prospective jurors using peremptory challenges. Uncalled in the venire were ten white

and eight black prospective jurors. At this point, the prosecutor raised a challenge pursuant to Batson, and

the district court requested that defense counsel offer race-neutral reasons for his peremptory challenges.

Defense counsel stated that he wanted to excuse two jurors because they had served on other juries; another
three jurors because they had indicated in voir dire that they would prefer to hear the defendant's testimony;

and a sixth juror for "no particular reason." R58 at 53-57.

        Defense counsel denied that his six peremptory strikes of white jurors was improperly racially

motivated. He stated:
        Judge, we have predominantly Caucasian and we have no chance. We have the opportunity for
        peremptory challenges and that's what we are doing. It is not based on race but just what we have
        been presented here.

R58 at 55.1
        The district court permitted the peremptory challenges as to three of the six prospective white jurors
whom the defense had attempted to strike. Defense counsel objected, stating:

        Judge, over the defense objection. Judge, we have predominantly Caucasians and we have no choice
        in this matter, Judge.

R58 at 59.
        After new jurors were seated to replace those who had been dismissed, defense counsel attempted
to use peremptory challenges to exclude two of them—an African-American female (who was employed by

the Department of Corrections) and a white male, Robert Mei. The prosecutor then requested that the court

solicit race-neutral reasons for defense counsel's exclusion of Juror Mei. Defense counsel responded:
        Judge, we have every right to exclude on peremptory challenges individuals that we don't feel are,
        or we are not comfortable. I don't think I am required to give a reason. There is no pattern. I have
        excluded an African-American.

        Judge, what this Government is saying is I cannot exclude anybody. That is what they are saying,
        and I don't believe I am required to give a reason at this point.

R58 at 73.

        The court understood defense counsel's comments at the earlier sidebar as a concession that he was

attempting to exclude whites from the jury.

        You basically in a way have conceded the last time at sidebar that that is what you were attempting
        to do and that is inappropriate, to base a peremptory challenge strictly on race....


    1
    Citations to the record are indicated by an "R" followed immediately by the docket exhibit number.
The number following "at" refers to the page number.
R58 at 74.

          Defense counsel responded:
          Judge, for the record, I did not indicate I was excluding anybody based on race. The panel presented
          before me had one African-American. I had no choice in excusing anybody. If what the Government
          is saying is that if I am not allowed to exclude—if I want to exclude anybody it must be limited to
          African-American. And, Judge, I will not give a reason.

          If Your Honor wants to rule in the Government's favor that is fine, Judge, over my objection, but I
          have no choice and at this point. I would challenge the panel as not being representative of the
          community.

R58 at 74-75.

          The district court sustained the government's objection to the use of the peremptory challenge as to
Mr. Mei. A replacement juror was called, and trial commenced without further challenge.

                                          STANDARDS OF REVIEW

          The application of the equal protection principles enunciated in Batson to the exclusion of whites

from a jury is an issue of constitutional law that is subject to plenary review. United States v. Gilbert, 130

F.3d 1458, 1461 (11th Cir.1997), cert. denied, 523 U.S. 1088, 118 S.Ct. 1547, 140 L.Ed.2d 695 (1998)

("Issues of constitutional law and statutory interpretation are subject to plenary review.").

          Courts reviewing the resolution of a Batson challenge give " 'great deference to a district court's

finding as to the existence of a prima facie case.' " Cent. Ala. Fair Housing Ctr., Inc. v. Lowder Realty Co.,

236 F.3d 629, 635-36 (11th Cir.2000) (quoting United States v. Stewart, 65 F.3d 918, 923 (11th Cir.1995),

cert. denied, 516 U.S. 1134, 116 S.Ct. 958, 133 L.Ed.2d 881 (1996)). De novo review is inappropriate. See

Stewart, 65 F.3d at 923 (citing United States v. Moore, 895 F.2d 484, 486 (8th Cir.1990)). A district court's

finding as to why a juror is excused is an issue of fact, and as such, it will not be disturbed on appeal "unless

it is clearly erroneous or appears to have been guided by improper principles of law." United States v.

Williams, 936 F.2d 1243, 1246 (11th Cir.1991), cert. denied, 503 U.S. 912, 112 S.Ct. 1279, 117 L.Ed.2d 504

(1992).

                                                 DISCUSSION

          Batson holds that "by denying a person participation in jury service on account of his race, the State

unconstitutionally discriminate[s] against the excluded juror." 476 U.S. at 87, 106 S.Ct. 1712 (citation

omitted). Although the peremptory challenges at issue in Batson were made by a government prosecutor

against African-American jurors, by its terms Batson is not limited to members of racial minorities. It applies

to anyone who is excluded from jury participation "on account of his race." Id. Since Batson, the Court has
reaffirmed the central meaning of Batson in holding that while "[a]n individual juror does not have a right

to sit on any particular petit jury, ... he or she does possess the right not to be excluded from one on account

of race." Powers v. Ohio, 499 U.S. 400, 409, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). See also Edmonson

v. Leesville Concrete Co., 500 U.S. 614, 618, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) ("a prosecutor's

race-based peremptory challenge violates the equal protection rights of those excluded from jury service").

In Georgia v. McCollum, 505 U.S. 42, 48, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992), in which a criminal

defendant exercised the challenges at issue, the court stated, "[D]enying a person participation in jury service

on account of his race unconstitutionally discriminates against the excluded juror." As we stated in Stewart,

65 F.3d at 923, "A defendant's misuse of the power of the court to deny a citizen her right to participate on

a jury because of race is as reprehensible as a prosecutor's."

         The Batson three-step procedure for evaluating an objection to a peremptory challenge is as follows:

(1) the objector must make a prima facie showing that the peremptory challenge is exercised on the basis of

race; (2) the burden then shifts to the challenger to articulate a race-neutral explanation for striking the jurors
in question; and (3) the trial court must determine whether the objector has carried its burden of proving

purposeful discrimination. See Lowder Realty, 236 F.3d at 635-36 (citing Batson, 476 U.S. at 96-98, 106

S.Ct. 1712).

          Plaintiff alleges that there was no prima facie showing of racial discrimination. "No party

challenging the opposing party's use of a peremptory strike ... is entitled to an explanation for that strike ...

unless and until a prima facie showing of racial discrimination is made." Stewart, 65 F.3d at 925. In Stewart,

citing Batson and its progeny, we reaffirmed that a district court cannot ignore the prima facie showing

requirement, since to do so "would be to ignore the Supreme Court's repeated descriptions of that requirement

as an integral part of any Batson analysis." Id. See also Lowder Realty, 236 F.3d at 635-36 (" '[T]he

establishment of a prima facie case is an absolute precondition to further inquiry into the motivation behind

the challenged strike.' "). We further quoted Batson's requirement that in order to determine whether a prima

facie case has been established,

        the trial court should consider all relevant circumstances. For example, a "pattern" of strikes against
        black jurors included in the particular venire might give rise to an inference of discrimination.
        Similarly, the [party's] questions and statements during voir dire examination and in exercising his
        challenges may support or refute an inference of discriminatory purpose. These examples are merely
        illustrative.

Id. (quoting Batson, 476 U.S. at 96-97, 106 S.Ct. 1712).
        Applying the highly deferential standard of review required by our precedent, see Stewart, 65 F.3d

at 923, we find the trial court did not abuse its discretion in moving to the second step of the Batson analysis.

Although in a vacuum the first six defense challenges might have caused no alarm, the district court was able

to assess all of the circumstances, such as the racial composition of the pool of remaining potential jurors, the

race and ethnicity of the defendant, and the type of crime charged. Cf. Lowder Realty, 236 F.3d at 636-37

(finding challenge to jurors of particular race, without further contextual evidence, insufficient to create
inference of racial discrimination). The trial judge did not elaborate on the reasons for his suspicion that the
Constitutional rights of the prospective jurors potentially excluded from the jury on the basis of race were

being violated. The totality of the circumstances, however, was sufficient to allow the district court to

conclude that the first Batson step was met. The "prima facie" requirement of Batson is not simply a limit

on the court's intrusion into counsel's thought processes; it also compels the trial court to act if it has a

reasonable suspicion that Constitutional rights are being violated in its presence.

         Assuming arguendo that the trial court erred in its assessment of whether a prima facie case of

discriminatory jury selection was made, appellant is not entitled to a new trial. The district court found that

defense counsel's statements on their face demonstrated a prohibited racial motive. The trial court is not

permitted to ignore such statements, nor are we.

        Stewart is no bar to this result. Had the trial court arrived at its factual conclusion that peremptory

strikes were being made on the basis of race, simply because of insufficient neutral justification as to

particular jurors, our statements in Stewart as to the prima facie requirement would apply. In such a case an

inference is drawn from counsel's explanations of its challenges. The inference may be incorrect and the
Constitutional rights at issue may in actuality be safe. In this case, however, the trial court found that

defendant's counsel conceded that his goal in striking the white jurors was to achieve a more racially diverse

jury. Appellant apparently draws the same conclusion from defense counsel's statement that defendant had

no chance with a white jury and that that jury did not reflect the community. See Appellant's Br. at 17. The

district court reasonably concluded from defense counsel's own characterization of the overall defense plan

and its objections to a predominantly white jury that the Constitutional rights of the jurors were at stake.2 See


    2
     This is not to say the objective of excluding jurors of a particular race in order to obtain a racially
diverse jury is fatal if combined with a non-race based motivation. See United States v. Tokars, 95 F.3d
1520, 1533 (11th Cir.1996), cert. denied, 520 U.S. 1151, 117 S.Ct. 1328, 137 L.Ed.2d 489 (1997);
Wallace v. Morrison, 87 F.3d 1271, 1274 (11th Cir.), cert. denied, 519 U.S. 1044, 117 S.Ct. 616, 136
L.Ed.2d 540 (1996). In this case, however, counsel did not attempt to establish that the jurors would have
R58 at 74.

         This brings us to the final issue of whether race-based peremptory challenges are permissible, if

exercised by a criminal defendant to obtain a racially diverse jury. The Constitutional right at issue here is
the potential juror's right not to be excluded on the basis of race. As indicated, the rights of jurors do not

depend on which party to the case may assist in violating them. The jurors' rights are grounded in the Equal

Protection Clause. See Batson, 476 U.S. at 85-89, 106 S.Ct. 1712. Under Supreme Court jurisprudence,

race-based treatment is subject to strict scrutiny under the Equal Protection Clause. Adarand Constructors,

Inc. v. Pena, 515 U.S. 200, 235-37, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (5-4 decision); Richmond v. J.A.

Croson Co., 488 U.S. 469, 493-94, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (plurality opinion). The standard

of review under the Equal Protection Clause "is not dependent on the race of those burdened or benefited by

a particular classification." Croson, 488 U.S. at 494, 109 S.Ct. 706 (plurality opinion). The Equal Protection

Clause contains a principle of "consistency" that recognizes that "any individual suffers an injury when he

or she is disadvantaged by the government because of his or her race, whatever that race may be." Adarand,

515 U.S. at 230, 115 S.Ct. 2097.

         There is no compelling justification for race-based discrimination here that satisfies the strict scrutiny
standards. Appellant does not claim that the Sixth Amendment is implicated because a fair cross-section of

the community was not made available for jury selection. Cf. 28 U.S.C. § 1861 ("It is the policy of the United

States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries
selected at random from a fair cross section of the community...."). Moreover, appellant has no fundamental
federal right to exercise challenges to particular jurors free from judicial examination. On the contrary, such
judicial examination is essential to ensure the Constitutional rights of persons to be free of exclusion from

jury service based on race. Finally, the number of peremptory challenges allowed is subject to alteration

simply by amending the Federal Rules. See Fed.R.Civ.P. 47; Fed.R.Crim.P. 24. However important fully

peremptory challenges may be to trial counsel, the right to exercise them is neither immutable nor

unconditional.    Cf. McCollum, 505 U.S. at 57, 112 S.Ct. 2348 ("[P]eremptory challenges are not

constitutionally protected fundamental rights;         rather, they are but one state-created means to the

constitutional end of an impartial jury and a fair trial.")

        Accordingly, we find no error or abuse in the trial court's scrutiny of defendant's peremptory


been challenged for non-race based motives, as well.
challenges, nor in its grant of the government's objections to some of the challenges.

        The judgment of the district court is

        AFFIRMED.
