PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                     No. 96-4721
LERRY BLOTCHER, a/k/a Troy Wilson,
a/k/a Boogie, a/k/a Larry Blutcher,
Defendant-Appellant.

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

Argued: June 4, 1997

Decided: April 27, 1998

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

_________________________________________________________________

Vacated and remanded by published opinion. Judge Widener wrote
the opinion, in which Judge Murnaghan and Senior Judge Phillips
concurred.

_________________________________________________________________

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.
OPINION

WIDENER, Circuit Judge:

Lerry Blotcher appeals his conviction of one count of conspiracy
to distribute crack cocaine on the grounds that the district court
improperly refused to allow Blotcher to exercise a peremptory strike
against a juror.* This is the second time this matter has been before
us, the court having remanded the case for the district court to set
forth its findings as required by the three-part analysis of Batson v.
Kentucky, 476 U.S. 79 (1986). United States v. Blotcher, No.
95-5590, slip op. 92-93 (4th Cir. 1996) (unpublished[table decision
92 F.3d] 1182). The district court explained that it found as a fact that
the defendant's proffered reasons for the challenged strikes were pre-
textual, and that the government had demonstrated the strikes were
motived by purposeful discrimination.

The record does not support the court's conclusion that Blotcher's
explanation that the juror in question appeared to be a conservative
person was pretextual, and for that reason we vacate Blotcher's con-
viction and remand the matter for a new trial.

I

On November 9, 1994 Blotcher was indicted on three counts, they
included one count of conspiracy to distribute crack cocaine under 21
U.S.C. § 846, and two counts of distributing crack cocaine under 21
U.S.C. § 841. Jury selection was performed on March 21, 1995 and
of the 36 jurors in the initial pool, there were 29 white jurors and 7
black jurors. Following voir dire, Blotcher, who is black, began listing
the jurors he wanted to strike. After he challenged three jurors the
government objected, raising a Batson challenge based on a pattern
of alleged racial discrimination against the white jurors. The court
deferred ruling on the matter. Moving on, Blotcher indicated through
his attorney that he wanted to strike juror number nine, Mr. Hedge-
peth. The government objected again, and after Blotcher indicated he
wanted to strike a fifth white juror, juror number 10, the court enter-
_________________________________________________________________

*He was acquitted of the two distribution counts.

                     2
tained the government's challenge that the strikes were racially moti-
vated and required Blotcher to state his reasons for striking those
jurors. Blotcher's counsel responded "I've discussed it with my client,
your honor. My client has told me that these are the people he does
not want on his jury." The court indicated that it would let Blotcher
finish his challenges, noting that there were then three black jurors on
the panel.

Blotcher finished his first round of challenges by striking juror
number 11, also a white juror. The court noted that the six jurors
struck by Blotcher were white and reminded him that"[t]he Batson
challenge cuts both ways." While the court allowed the strikes to
stand at that time, it indicated that defense counsel should discuss
with Blotcher the need for specific reasons for his strikes, and asked
the government if it wanted to pursue the matter further. The govern-
ment insisted that it was necessary to establish the basis for the last
four strikes, so the court required that before the next round of strikes
defense counsel consult with Blotcher in order to provide specific rea-
sons for each strike.

After consulting with Blotcher, defense counsel explained that in
deciding who to strike "my client tells me that there are a number of
things, that he's just attempting to size the jurors up, and that there
are -- he's doing the best he can to determine who would be a fair
juror in this case. He's using his -- all the knowledge he has to make
that determination." As to the first strike Blotcher's counsel explained
that the juror had made a statement to the effect that she did not like
drugs. Both the court and the government accepted that reason. As to
the second, third, fifth, and sixth strikes defense counsel explained:

          There is a lot, as to the other jurors. He [Blotcher] is particu-
          larly concerned about the older people on the jury. He told
          me coming in that he wanted young -- he feels like young
          people can relate better to his case, particularly since it's a
          drug case. He's a younger person, and that relates to Mr.
          Hines, Mr. Vereen, Mr. Whitty and Ms. Taylor.

The government and the court accepted that explanation for striking
those four jurors.

                    3
With regard to juror number nine, Mr. Hedgepeth, who was the
fourth juror Blotcher wanted struck, defense counsel stated:

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

          Obviously, we do not have a lot of information to go on
          because there has not been a lot of in depth questioning of
          the jurors. But from his appearance, he would appear to be
          a conservative type person, which we believe would not be
          the best juror in this case for him.

The government argued that this was not a valid reason for striking
Mr. Hedgepeth because all the jurors were "neatly and well dressed"
and "there is nothing about Mr. Hedgepeth's dress that is in any way
more conservative than anyone else that's on this jury." The court
agreed and though it excused the other challenged jurors, it left Mr.
Hedgepeth on. After defense counsel objected, the court, with under-
standing, explained its skepticism as to the government's challenge:

          I find this whole process something that is unfathomable. I
          have no way of knowing the reasons why Mr. Blutcher[sic]
          would not want Mr. Hedgepeth. I just have no reason for it.
          I'm frank to say that in my view the reason for the peremp-
          tories is you've got a hunch that somebody's going to go
          against you, you just strike them. I've always felt-- it's
          hard to articulate a reason. It's pretty ridiculous.

The government argued further, and the court, noting the defendant's
objection, determined that it would not excuse Mr. Hedgepeth
because it didn't "perceive any rational reason for getting Mr. Hedge-
peth off."

There followed another round of jury selection, during which Blot-
cher exercised three peremptory strikes which the government did not
challenge. [The father of one juror was a police officer for 20 years,
another juror was in the air force.] At that time the district court
returned to the issue of the Hedgepeth strike. The court explained its
denial of the strike by saying:

                    4
          You [Botcher's counsel] made some comment about his
          being conservative. He's not dressed conservatively. He has
          a sport shirt on. You made some comment about wanting
          younger people. He is not an older person. And I find that
          -- I don't see any reason that was given that would strike
          me as being other than pretextual, I don't remember any
          specific reason offered by your client relating to that person
          that I would find to have validity, and I so find. The com-
          ments that he made concerning not wanting conservative
          people was [sic] pretextual.

The court then invited the defense counsel to inquire as to why Blot-
cher thought the juror appeared conservative. After inquiring, defense
counsel explained that Hedgepeth appeared conservative to Blotcher
because "[h]e's got his hair kind of nice and he's got nice glasses on."
The government interjected at that moment that none of the black
jurors had been struck by Blotcher, even though some were wearing
ties. Without further explanation the court found Blotcher's argument
pretextual and refused to strike Hedgepeth. The defense reasserted its
objection to the notion that his client had engaged in "racial miscon-
duct", and noted that the jury at that time was composed of four black
jurors while the remaining majority was white.

After a two day trial the jury acquitted the defendant of the charges
of distributing crack cocaine and convicted him of the conspiracy
charge.

Blotcher appealed the district court's refusal to strike Hedgepeth.
He argued that the district court did not follow the three-step analysis
of Batson by conflating the second and third steps, and that the court
erred by requiring his explanation be not only race-neutral, but also
rational. Finally, he contended that the prosecution had not met its
burden of proving purposeful discrimination. Blotcher, slip op. at 7.
We found the record to be inconclusive not only as to whether the dis-
trict court properly executed the three-part analysis, but also whether
it had made a finding as to whether prosecution had met its burden
of proving purposeful discrimination. Blotcher , slip op. at 7. "Based
on the confusion in the transcript and the absence of the necessary
Batson findings" we remanded the matter for further proceedings so
that the district court could clarify its order. Blotcher, slip op. at 9.

                    5
On remand the district court in an order of August 27, 1996 stated
that further proceedings were not necessary because the court had a
clear recollection of the events related to the Batson challenge, as well
as the court's reasons for sustaining the government's objection to the
defendant's strike. The court then set forth its findings as required by
Batson.

          1. The United States made out a prima facie case of pur-
          poseful discrimination in noting that the defendant, who is
          an African-American, had demonstrated a discriminatory
          pattern by exercising six of its ten peremptory challenges to
          remove white veniremen from the jury box.

          2. The court and the United States accepted the defen-
          dant's explanation for removing five of the six veniremen;
          as to the sixth, the defendant proffered the race-neutral
          explanation that the juror "appears to be a very-- just from
          his appearance, a conservative person. . . . He's got his hair
          kind of nice and he's got nice glasses on." This explanation
          does not have to state "a reason that makes sense;" it merely
          must not be based on race. Purkett v. Elem, 115 S. Ct. 1769,
          1771 (1995).

          3. After hearing from the defendant and the United
          States, in light of all the circumstances and weighing the rel-
          ative persuasiveness of the arguments by "observing with its
          own eyes the very act in dispute," Jones v. Plaster, 57 F.3d
          417, 421 (4th Cir. 1995) (citations omitted), the court found
          as a fact that the defendant's proffered reasons for exercis-
          ing the challenged strikes were pretextual, and that the
          United States demonstrated that those strikes were moti-
          vated by purposeful racial discrimination.

On August 30, 1996 the defendant moved the court to reconsider its
order and to conduct a hearing on the matter, which the court denied.
On September 5, 1996 the defendant timely filed a notice of appeal
to this court.

II

The district court's determinations of whether the proffered expla-
nation for the use of a preemptory challenge is pretextual and whether

                    6
there has been purposeful racial discrimination largely turn on credi-
bility and to those we should ordinarily give great deference. Batson
v. Kentucky, 476 U.S. 79, 98 n.21 (1986); Jones v. Plaster, 57 F.3d
417, 421 (4th Cir. 1995). This deference to the district court arises
from the fact that its findings are based on credibility determinations.
Batson, 476 U.S. at 98, n.21; Jones, 57 F.3d at 421.

At this point we consider the order of the district court on remand,
remembering that, in connection with the excusal of juror Hedgepeth
at trial, it had considered peremptory challenges to six jurors includ-
ing Hedgepeth. It sustained the striking of one white juror who didn't
like drugs and four white jurors who were older people who would
not sympathize with the defendant, who was a young man. These five
were struck with the approval of the district court and did not serve
on the jury. As to juror Hedgepeth, the court found that the challenge
to him was pretextual.

On remand, however, the district court's finding was:

          [T]he court found as a fact that the defendant's proffered
          reasons for exercising the challenged strikes were pretex-
          tual, and that the United States demonstrated that those
          strikes were motivated by purposeful racial discrimination.

The record simply does not support this finding of fact of the district
court. Rather than all of the challenged strikes being pretextual, as
found on remand, five of the challenged strikes were specifically
upheld by the district court at trial, and those jurors did not serve.

Our remand was for clarification of its ruling as to juror Hedge-
peth, but the order of the district court on remand only recited that it
had a clear recollection of the events underlying the Batson challenge
and repeated that the challenge to Hedgepeth was among the chal-
lenged strikes, all of which the court found on remand were pretex-
tual.

Although the district court acknowledged, in its opinion on
remand, that the reasons given by Blotcher for the excuse of Hedge-
peth were race neutral, it, nevertheless, declined to accept the race
neutral reason.

                     7
To repeat the reasons given at trial:

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

A.41.

Upon pressing by the United States and further inquiry by the dis-
trict court as to why Blotcher thought that Hedgepeth was conserva-
tive, the court was advised:

          He has got his hair kind of nice and he's got nice glasses on.

A.56.

Blotcher's attorney had given his client's reasoning for striking
jurors as follows:

          My client tells me that there are a number of things, that
          he's just attempting to size the jurors up and that there are--
          he's doing the best he can to determine who would be a fair
          juror in this case. He's using his--all the knowledge he has
          to make that determination.

A.40.

The defendant's attorney further advised the court:

          Your Honor, I would also like the record to reflect that at
          all times, as the jury's composed right now, that there are
          four Afro-Americans and the majority of the jurors are
          white. My client is Afro-American, and I do not believe that
          he is engaged in any way in any sort of racial misconduct,
          if you will, by exercising his independent judgment of sizing
          people up as to who he believes is going to give him a fair
          trial.

A.56-57. The court rejected the reasoning of the defendant. It found:

                     8
          The comments that he [the defendant] made concerning not
          wanting conservative people was [sic] pretextual.

A.56.

The district court also found:

          Well, I don't perceive any rational reason for getting Mr.
          Hedgepeth off. I'm not going to excuse him.

A.43. The district court accepted the argument of the government,
that Hedgepeth was not dressed any more conservatively than others
on the jury, and apparently decided that the reasons given for Hedge-
peth's excuse were pretextual for that reason, although not explicitly
stated that way.

The difficulty with the district court's holding was two-fold. First,
it did not acknowledge the rule that intentional discrimination is not
shown by a failure to challenge all jurors with a given characteristic,
here, conservative dress, in the words of the district court. United
States v. Lane, 866 F.2d 103, 106 (4th Cir. 1989); United States v.
Kunzman, 54 F.3d 1522, 1529 (10th Cir. 1995). More importantly, the
district court did not acknowledge the rule in Batson that, except for
Equal Protection Clause infected racial challenges, a party " . . . ordi-
narily is entitled to exercise permitted preemptory challenges `for any
reason at all, as long as that reason is related to his view concerning
the outcome' of the case to be tried . . . ." Batson v. Kentucky, 476
U.S. 79, 89 (1986). We followed this rule from Batson in Lane, 866
F.2d at 106, and the Court has not changed the rule.

Blotcher's attorney all but paraphrased the rule from Batson when
he stated that Blotcher was exercising his independent judgment as to
who he believed was going to give him a fair trial. That is all that is
required, except that the reason given be not racial. "Unless a discrim-
inatory intent is inherent in the . . . explanation, the reason offered
will be deemed race neutral." Hernandez v. New York, 500 U.S. 352,
360 (1991).

The district court made the same error here as did the court of
appeals in Purkett v. Elem, 514 U.S. 765 (1995) (per curiam), which

                    9
the Court described as ". . . its whole focus was upon the
reasonableness of the asserted non racial motive. . . rather than the
genuineness of the motive." Purkett, 514 U.S. at 769. (Italics in origi-
nal.)

Finally, the Supreme Court has specifically upheld the stated rea-
son for a challenge to ". . . juror number 22 because he had long,
unkempt hair, a mustache, and a beard." Purkett, 514 U.S. at 769. The
Court held that that reason was "race neutral and satisfies the . . . step
two burden of articulating a non-discriminatory reason for the strike."
Purkett, 514 U.S. at 769. The Court added that the wearing of beards
is not a characteristic that is peculiar to any race, and neither is the
growing of long, unkempt hair. We are unable to distinguish that
challenge from the one at hand.

Blotcher having given a genuine non-racial reason for his striking
of the juror Hedgepeth, we are of opinion that the conclusion of the
district court, that the strike was "motivated by purposeful racial dis-
crimination," is clearly erroneous.

It follows that the conviction of Blotcher must be vacated and the
case remanded for a new trial.

VACATED AND REMANDED.*
_________________________________________________________________
*It is also noteworthy, although not dispositive, that Blotcher accepted
the jury without exercising one of his strikes, which he could have used
to strike another white juror. See United States v. Joe, 928 F.2d 99, 103
(4th Cir. 1991).

                     10
