Defendant Campbell, charged with federal firearms offenses and having received a new trial,
United States v. Campbell,
The reсord shows that the jury 'panel consisted of twenty-eight persons of whom two were black. The prosecutor, exercising his six peremptory challenges, chal *27 lenged both black members, Bruce Dixon and Jeffrey Kennedy. Appellant’s counsel objeсted, raising the issue of racial discrimination; the prosecutor denied racial prejudice, stating that there were “other people ... we’d rather have on the jury, that’s all;” but the court, stating that it took “this motion seriously,” offered appellant а mistrial, which appellant refused to accept.
Subsequently, the government withdrew its objection to Mr. Dixon, one of the black panel members; but appellant continued to insist that the government accept panelist Kennedy as well. The cоurt then embarked upon a hearing. It offered appellant’s counsel an opportunity to call its attention to any relevant facts, to question the prosecutor, and to present additional evidence. The court itself asked the prosecutor why he had peremptorily challenged the black panelists. The prosecutor initially said he had done so bеcause of their youth. He agreed that he had not objected to two other young people on the panel, but hе pointed out that he had only six peremptory challenges available. Toward the end of the hearing, the proseсutor was asked to focus on his reason for objecting to panelist Kennedy but not to other younger members of the panеl. The prosecutor then said that his selection of panelist Kennedy rested on Mr. Kennedy’s “demeanor” when being questioned аbout his mother having been the victim of a crime, on a “lot of intangible factors” going into an “analysis of the remaining people who were on the jury panel,” and on the “vibrations or the feeling I got when we were all together and he was addressing the Cоurt____” The court then made a “factfinding” that “the Government’s purpose in challenging both of the black jurors was not racially motivаted,” and “the Government’s action in initially seeking to challenge both blacks was not on racial grounds.” The court consequеntly refused to require Mr. Kennedy’s selection for the jury.
As appellant concedes, under presently existing Supreme Court prеcedent, he cannot prevail on this appeal, for he has not shown “the prosecutor’s
systematic
use of peremptоry challenges” against blacks “over a period of time.”
Swain v. Alabama,
These facts, however, do not helр appellant for two reasons. First, the district court, in this case, investigated the ‘racial’ allegation in as much detail and with аs much sensitivity as any revision of Swain’s restrictive rule is likely to require. The court, after applying the procedures we have just dеscribed, judged the evidence in light of a standard that recognized the importance of avoiding racial discrimination. The court stated, for example:
Accepting your arguments that, given the way this came about, I should impose on him [the proseсutor] a heavy burden of showing his good faith, I nevertheless find that he is seeking in good faith to exercise one of these peremptories on nonracial grounds____
It added:
On this matter, I start accepting the proposition that I should apply a rebut-table prеsumption when all of the blacks on the panel are stricken peremptorily, a rebuttable presumption that it is racially motivated, and then should proceed to consider the evidence that is offered before me to rebut that presumption and to make a finding upon it____
This evidentiary standard is adequate even under McCray, where the Second Circuit, departing from Swain, wrote that once a “defendant establishes a prima facie case, *28 the burden of рroof shifts to the State to rebut the presumption of unconstitutional action.” The McCray court added:
In order to rebut the defendant’s showing, the prоsecutor need not show a reason rising to the level of cause. There are any number of bases on which a party may believe, not unreasonably, that a prospective juror may have some slight bias that would not support a challengе for cause but that would make excusing him or her desirable. Such reasons, if they appear to be genuine, should be accepted by the court, which will bear the responsibility of assessing the genuineness of the prosecutor’s response and of being alert to reasons that are pretextual.
McCray v. Abrams,
Second, the district court’s findings are adequately supported in the recоrd before us. The prosecutor provided a statement of reasons explaining his challenges. Evaluating those reasоns requires an assessment of credibility, a matter within the special competence of the district court. Although the appellant argues that the prosecutor changed his reasons as the hearing progressed, in context, the “changes” might be viеwed as elaborations, enunciated as called for by the questions of court or counsel.
Compare United States v. Leslie,
We also note that in a separate brief appellant
(pro se)
argues that the district court should have suppressed certain evidence and should not have found appellant in contempt for refusing to supply handwriting samples. This court addressed both of these matters in its earlier opinion,
United States v. Campbell,
For these reasons, the judgment of the district court is
Affirmed.