United States v. Marvin Jerome Horsley, Earl Howard McDonald, 864 F.2d 1543 (11th Cir. 1989). · Go Syfert
United States v. Marvin Jerome Horsley, Earl Howard McDonald, 864 F.2d 1543 (11th Cir. 1989). Cases Citing This Book View Copy Cite
105 citation events (39 in the last 25 years) across 32 distinct courts.
Strongest positive: Commonwealth v. Butler (massappct, 2016-11-04)
Treatment trajectory · 1989 → 2026 · click a year to view as-of
1989 2007 2026
Top citers, strongest first. 42 distinct citers.
discussed Cited as authority (rule) Commonwealth v. Butler (2×)
Mass. App. Ct. · 2016 · confidence medium
See also United States v. Battle, 836 F.2d 1084, 1086 (8th Cir. 1987) (same); United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir. 1989) (same); Jones v. West, 555 F.3d 90, 102 (2d Cir. 2009) (same).
discussed Cited as authority (rule) Averill Briggs v. Randy Grounds (2×)
9th Cir. · 2012 · confidence medium
In contrast to aspects of demeanor such as “nervousness” or “inattention” upon which prosecutors often rely, Snyder, 552 U.S. at 477 , 128 S.Ct. 1203 , no judge could discern whether a prospective juror was giving a prosecutor a “warm feeling.” See United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir.1989) (holding that a prosecutor’s “feeling” about a juror was insufficient to overcome a prima facie case of discrimination in violation of Batson).
discussed Cited as authority (rule) Moeller v. Blanc (2×) also: Cited "see, e.g."
Tex. App. · 2009 · confidence medium
In one case, the prosecutor said, “I don’t have any particular reason [for striking an African-American ve-nire member], I just got a feeling about him as I have about Mr. Gonzalez and several others.” United States v. Horsley, 864 F.2d 1543, 1544 (11th Cir.1989) (per curiam).
discussed Cited as authority (rule) Commonwealth v. Cook (2×)
Pa. · 2008 · confidence medium
I just got a feeling about him as I have about [several other members of the venire]." Id. at 1544 (internal quotation marks omitted).
discussed Cited as authority (rule) Alex v. Rayne Concrete Service
La. · 2007 · confidence medium
T.B., 511 U.S. 127 , 114 S.Ct. 1419 , 128 L.Ed.2d 89 (1994) (holding that "gender, like race, is an unconstitutional proxy for juror competence and impartiality"). [15] See United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir.1989) (holding that an attorney's unsupported intuitive feeling is an insufficient race-neutral reason for a peremptory strike); Brown v. Kelly, 973 F.2d 116, 121 (2d Cir.1992) (quoting statement from Horsley that mere feeling is not sufficient race-neutral explanation), cert. denied, 506 U.S. 1084 , 113 S.Ct. 1060 , 122 L.Ed.2d 366 (1993); United States v. Casper, 956…
cited Cited as authority (rule) Kandies v. Polk
4th Cir. · 2004 · signal: cf. · confidence medium
Cf. United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir. 1989) (per curiam) (rejecting prosecu- tor’s explanation that he "just [had] a feeling about him").
discussed Cited as authority (rule) Jeffrey Clayton Kandies v. Marvin Polk, Warden, Central Prison, Raleigh, North Carolina (2×)
4th Cir. · 2004 · signal: cf. · confidence medium
Cf. United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir.1989) (per curiam) (rejecting prosecutor’s explanation that he “just [had] a feeling about him”).
cited Cited as authority (rule) Harris v. Kuhlmann
E.D.N.Y · 2000 · confidence medium
United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir.1989) (per curiam). 3 .
discussed Cited as authority (rule) Martin H. Tankleff v. D.A. Senkowski, Superintendent of Clinton Correctional Facility
2d Cir. · 1998 · confidence medium
See, e.g., Turner v. Marshall, 63 F.3d 807, 812 (9th Cir.1995) (“There is no magic number of challenged jurors which shifts the burden to the government to provide a neutral explanation for its actions.”) (quoting United States v. Chinchilla, 874 F.2d 695, 698 (9th Cir.1989)); United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir.1994) (the striking of even a single juror based on race violates the constitution, and the court must consider not only the number of minority jurors struck but also the relevant circumstances surrounding the challenges); United States v. Horsley, 864 F.2d 15…
discussed Cited as authority (rule) Morrison v. Jones
M.D. Ala. · 1996 · confidence medium
Ex parte Williams, 571 So.2d 987, 990 (Ala.1990) (citing Ex parte Branch, 526 So.2d 609 (Ala.1987)); See also United States v. Battle, 836 F.2d 1084 (8th Cir.1987) (use of five of six strikes to eliminate five of seven black potential jurors constitutes a prima facie case); Guthrie v. State, 616 So.2d 913 , *733 914 (Ala.Cr.App.1992) (prima facie case established where the state excludes seven out of nine qualified black venire members); United States v. Horsley, 864 F.2d 1543, 1545-46 (11th Cir.1989) (use of single peremptory strike to exclude a qualified black venire member may constitute a …
cited Cited as authority (rule) State v. Ford
La. Ct. App. · 1994 · confidence medium
United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir.1989); United States v. Bentley-Smith, 2 F.3d 1368, 1380 (5th Cir.1993).
cited Cited as authority (rule) United States v. Julio Cesar Vasquez-Lopez
9th Cir. · 1994 · confidence medium
Id. at 1546.
examined Cited as authority (rule) United States v. Thomas Bentley-Smith and Edsil M. Elledge, Jr., A/K/A Ken Elledge (6×) also: Cited "see"
5th Cir. · 1993 · confidence medium
I just got a feeling about him as I have about Mr. Gonzalez and several others.” Id. at 1544 (footnote omitted).
discussed Cited as authority (rule) United States v. Bentley-Smith
5th Cir. · 1993 · confidence medium
Hostile facial expressions and body language "can be observed in the courtroom; therefore the truth or falsity of explanations of this kind is subject to proof." Barfield v. Orange County, 911 F.2d 644, 648 (11th Cir. 1990), 21 See United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir. 1989). 22 See Brown v. Kelly, 973 F.2d 116, 121 (2d Cir. 1992) (quoting statement from Horsley that mere feeling is not sufficient race-neutral explanation), cert. denied, 113 S. Ct. 1060 (1993); United States v. Casper, 956 F.2d 416, 418 (3d Cir. 1992) (quoting same statement from Horsley); Reynolds v. Benefi…
discussed Cited as authority (rule) Jefferson v. United States (2×)
D.C. · 1993 · confidence medium
See Batson, supra, 476 U.S. at 98 , 106 S.Ct. at 1724 (prosecutor "must articulate a neutral explanation related to the particular case to be tried"); United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir.1989) (prosecutor's "vague explanation" for striking a black juror, i.e., "I don't have any particular reason; I just got a feeling about him," was insufficient to rebut defendant's prima facie showing of discrimination).
discussed Cited as authority (rule) Ex Parte Carter
Ala. · 1993 · confidence medium
In Harrell v. State, 555 So.2d 263, 267 (Ala.1989) this Court cited United States v. David, 803 F.2d 1567, 1571 (11th Cir.1986), United States v. Hughes, 864 F.2d 78, 79 (8th Cir.1988), and United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir.1989), and stated: "The trial judge has discretion in finding whether a prima facie case of purposeful discrimination has been proven.
cited Cited as authority (rule) State v. Ellison
Tenn. · 1992 · confidence medium
United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir.1989).
discussed Cited as authority (rule) State v. Hernandez
Ariz. Ct. App. · 1991 · confidence medium
Further, although it is inappropriate to simply allude to “feelings” about a juror, United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir.1989) (“I just got a feeling about him”), it is appropriate to consider factors which reflect attitude.
discussed Cited as authority (rule) United States v. Rickey L. Pressley
6th Cir. · 1991 · confidence medium
Defendant relies upon the observation of the Ninth Circuit Court of Appeals that a "prosecutor's disparate treatment of veniremen who were similar in relevant aspects except race" may, in the absence of other neutral selection criteria, be a violation of the equal protection clause, United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir.1989), without suggesting that the government in fact did not apply the articulated rationale to this panel in a race-neutral manner.
cited Cited "see" United States v. Christopher C. Coburn
11th Cir. · 2021 · signal: see · confidence high
See United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir. 1989).
cited Cited "see" State v. Scott
S.D. · 2013 · signal: see · confidence high
See United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir.1989).
discussed Cited "see" Robinson v. United States (2×)
D.C. · 2005 · signal: see · confidence high
See United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir.1989) ("The prosecutor’s explanation in the present case, T just got a feeling about him,' obviously falls short of this requirement.”).
discussed Cited "see" State v. Valdez
Utah Ct. App. · 2004 · signal: see · confidence high
See United States v. *301 Horsley, 864 F.2d 1543, 1546 (11th Cir.1989) (holding prosecutor’s explanation that he struck juror because “I just got a feeling about him” “obviously [fell] short” of being reasonably clear and specific). . ¶ 27 If the prosecutor cites demean- or as a reason for striking a juror, courts should apply “particularly careful scrutiny” because “such after-the-fact rationalizations are susceptible to abuse.” Brown v. Kelly, 973 F.2d 116, 121 (2nd Cir.1992).
cited Cited "see" Weddell v. Weber
D.S.D. · 2003 · signal: see · confidence high
See Honomichl, 498 N.W.2d at 640, n. 6 (distinguishing United States v. Horsley, 864 F.2d 1543 (11th Cir.1989)).
discussed Cited "see" Quang Bui v. Michael Haley, Commissioner, Alabama Department of Corrections (2×)
11th Cir. · 2003 · signal: see · confidence high
See United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir.1989) (per curiam).
cited Cited "see" Quang Bui v. Michael Haley, Commissioner, Alabama Department of Corrections
11th Cir. · 2002 · signal: see · confidence high
See United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir.1989).
cited Cited "see" Quang Bui v. Michael Haley
11th Cir. · 2002 · signal: see · confidence high
See United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir. 1989).
cited Cited "see" Byron K. Morse v. Craig Hanks
7th Cir. · 1999 · signal: see · confidence high
See United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir.1989).
cited Cited "see" Ex Parte Bankhead
Ala. · 1993 · signal: accord · confidence high
Accord United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir.1989); Foster v. State, 557 So.2d 634, 635 (Fla. Dist.Ct.App.1990).
cited Cited "see" United States v. Darrin Casper, A/K/A Barry Jackson
3rd Cir. · 1992 · signal: see · confidence high
Id.; See United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir.1989) (per curiam) (“I just got a feeling about him” is insufficient).
discussed Cited "see" Ex Parte Bird (2×)
Ala. · 1991 · signal: accord · confidence high
Accord United States v. Horsley , 864 F.2d 1543 , 1546 (11th Cir. 1989); Foster v. State , 557 So.2d 634 , 635 (Fla.Dist.Ct.App. 1990).
cited Cited "see" United States v. Dorothy Williams, Melvin Smith, Eugene Moore, Willie Henry Jenkins, Ralph Lipsey, Jr.
11th Cir. · 1991 · signal: see · confidence high
See United States v. Horsley, 864 F.2d 1543 , 1544 & n. 2 (11th Cir.1989) (citing Johnson v. Robison, 415 U.S. 361 , 364 n. 4, 94 S.Ct. 1160 , 1164 n. 4, 39 L.Ed.2d 389 (1974)).
discussed Cited "see" Commonwealth v. Harris (2×)
Mass. · 1991 · signal: see · confidence high
See United States v. Horsley, 864 F.2d 1543, 1544-1546 (11th Cir.1989); United States v. Cloyd, 819 F.2d 836, 837-838 (8th Cir.1987); United States v. Love, 815 F.2d 53, 54-55 (8th Cir.), cert. denied, 484 U.S. 861 (1987); Stanley v. State, 313 Md. 50, 84-87 (1988); Mitchell v. State, 295 Ark. 341, 348-351 (1988); Pearson v. State, 514 So.2d. 374, 375-376 (Fla. App. 1987); Saadiq v. State, 387 N.W.2d 315, 326 (Iowa), appeal dismissed, 479 U.S. 878 (1986); Brown v. State, 762 P.2d 959, 961-962 (Okla.
discussed Cited "see" State v. Hairston
Ohio Ct. App. · 1990 · signal: see · confidence high
See United States v. Horsley (C.A.11, 1989), 864 F.2d 1543 (“I just got a feeling about him.”); People v. Turner (1986), 42 Cal.3d 711 , 230 Cal.Rptr. 656, 662 , 726 P.2d 102, 108 (“I don’t think I have to give the court any reasons at this time.”).
discussed Cited "see, e.g." Willie B. Smith, III v. Commissioner, Alabama Department of Corrections
11th Cir. · 2019 · signal: see, e.g. · confidence low
See, e.g ., Weber v. Strippit, Inc. , 186 F.3d 907 , 911 (8th Cir. 1999), cert. denied , 528 U.S. 1078 , 120 S.Ct. 794 , 145 L.Ed.2d 670 (2000). 15 In United States v. Horsley , we held that a prosecutor's statement that "I've just got a feeling about [the juror]" was too vague to rebut a prima facie case of discrimination. 864 F.2d at 1544 .
discussed Cited "see, e.g." State v. YAI BOL
Vt. · 2011 · signal: see also · confidence medium
See Crittenden v. Ayers, 624 F.3d at 955 (“[T]he prosecutor’s use of a peremptory strike against the only African-American prospective juror is a relevant consideration, although it does not by itself raise an inference of discrimination.”); United States v. Bergodere, 40 F.3d 512, 516 (1st Cir. 1994) (“[T]he mere fact that the prosecutor challenges the only juror of a particular race, without more, does not automatically give rise to an inescapable inference of discriminatory intent.”); see also United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir. 1989) (per curiam) (rejecting t…
discussed Cited "see, e.g." McGahee v. Alabama Department of Corrections
11th Cir. · 2009 · signal: see also · confidence medium
See also United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir.1989) (“[T]he prosecutor must nevertheless give a clear and reasonably specific explanation of his legitimate reasons for exercising the challenges.”).
discussed Cited "see, e.g." John Washington Hightower v. Derrick Schofield (2×)
11th Cir. · 2004 · signal: compare · confidence medium
Compare Purkett, 514 U.S. at 769 , 115 S.Ct. at 1771 (holding that the prosecutor satisfied his burden of production merely by expressing his discomfort with the struck black juror’s long, unkempt hair, mustache, and beard), with United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir.1989) (holding that the prosecutor failed to satisfy his burden of production when he stated that he struck a black juror because he “just got a feeling about him”).
discussed Cited "see, e.g." State v. Sessoms
N.C. Ct. App. · 1995 · signal: compare · confidence low
Compare U.S. v. Horsley, 864 F.2d 1543 (11th Cir. 1989) (where the prosecutor’s explanation that “I just got a feeling about him” was legally insufficient to refute a prima facie case of purposeful racial discrimination).
cited Cited "see, e.g." Larry Brown v. Walter Kelly, Superintendent, Attica Correctional Facility
2d Cir. · 1992 · signal: compare · confidence medium
Compare United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir.1989) (prosecutor’s explanation “I just got a feeling about him” insufficient).
cited Cited "see, e.g." State v. Holley
R.I. · 1992 · signal: see, e.g. · confidence low
See, e.g., United States v. Horsley, 864 F.2d 1543 (11th Cir.1989).
discussed Cited "see, e.g." United States v. Anthony Esparsen, United States of America v. Kelly Esparsen, United States of America v. Robert McFadden
10th Cir. · 1991 · signal: see also · confidence medium
By itself, the number of challenges used against members of a particular race is “not sufficient to establish or negate a prima facie case.” Dawn, 897 F.2d at 1448 ; see also United States v. Horsley, 864 F.2d 1543, 1546 (11th Cir.1989).
UNITED STATES of America, Plaintiff-Appellee,
v.
Marvin Jerome HORSLEY, Earl Howard McDonald, Defendants-Appellants
86-3316.
Court of Appeals for the Eleventh Circuit.
Feb 6, 1989.
864 F.2d 1543
Samuel R. Mandelbaum, Tampa, Fla., for Horsley., Timothy Allen Hunt, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, Fla., for McDonald., Whitney L. Schmidt, Asst. U.S. Atty., Tampa, Fla., for U.S.
Tjoflat, Vance, Cox.
Cited by 76 opinions  |  Published
PER CURIAM:

I.

In this appeal, Marvin Jerome Horsley and Earl Howard McDonald challenge their convictions for possession of cocaine with intent to distribute, see 21 U.S.C. § 841(a)(1) (1982), on two grounds. One of the grounds is frivolous [1] and is not worthy of discussion. The other, based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), has merit and requires that we remand the case to the district court for further proceedings.

The appellants, who are black, contend that during the selection of the jury that tried the case, the prosecutor purposefully discriminated against them by peremptorily challenging the only black on the venire. They therefore claim that the district court denied them the equal protection of the[*1544] laws as guaranteed by the due process clause of the fifth amendment [2] when it overruled their objection to the seating of the jury.

The jury was selected in the following manner. First the court qualified a venire of thirty-two persons. Only one of the thirty-two veniremen, Clarence Beckham, was black. The court then examined the venire and, when it finished, invited counsel to undertake their own additional examination of the veniremen. The prosecutor declined the invitation; defense counsel accepted it and made a brief inquiry of several veniremen. The court thereafter entertained challenges for cause; none were made.

The parties exercised their peremptory challenges at side bar; the Government had six challenges, and the defendants had ten. The parties presented their challenges — one by one with the Government proceeding first — by addressing the twelve veniremen seated in the jury box; as strikes were made, the challenged venireman was replaced by the next venireman in line (from the twenty not in the box).

The Government struck Clarence Beck-ham with its second peremptory challenge. At this point, the defense expressed concern that appellants were to be tried by an all-white jury and objected to what appeared to be a racially discriminatory use of the peremptory challenge by the prosecutor. Accordingly, defense counsel asked the court to request that the prosecutor give his reasons for exercising his peremptory challenge against Beckham. Since Beckham’s answers to the district court’s questions, during voir dire, did not differ in substance from those provided by white jurors whom the prosecutor did not strike, [3] the court ruled that the defendants were “entitled to something on the record.” The obvious implication of the court’s action is that it inferred from the circumstances that the prosecutor had struck Beckham because he was black in order purposefully to deprive appellants of the possibility of having any blacks impaneled to try the case. The court then requested the prosecutor to set forth a non-racially discriminatory reason for striking the black juror. The prosecutor responded, “I don’t have any particular reason. I just got a feeling about him as I have about Mr. Gonzalez and several others.” [4]

[*1545] Before swearing in the jury, the district court revisited the defendants’ objection to the striking of Beckham in light of the Supreme Court’s opinion in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), which had been handed down the preceding day. The court asked the prosecutor if he had anything to add to his previous justification for striking Beckham, and the prosecutor answered in the negative. Upon reconsideration, the district court retreated from its earlier position and reversed its earlier ruling that the circumstances permitted an inference of purposeful discrimination. The court did so because it interpreted Batson as holding that a prima facie case of purposeful discrimination can be established only when the prosecutor has engaged in a pattern of peremptory strikes against a minimum of three or four black veniremen. [5] Because such a pattern could not be established in the case at hand — the venire contained only one black juror — the court concluded that the prosecutor’s use of the peremptory challenge against Beckham did not rise “to the stature of a constitutional violation.” Horsley and McDonald contend that the district court misconstrued the requirements of Batson. We agree.

II.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court overruled Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), to the extent that it had held that a prosecutor’s exercise of peremptory challenges in a given case, standing alone, could not permit an inference of purposeful discrimination. See Batson, 476 U.S. at 93-96, 106 S.Ct. at 1721-22. [6] The Batson court reasoned that Swain’s requirement had “placed on defendants a crippling burden of proof” and had rendered prosecutors’ peremptory challenges “largely immune from constitutional scrutiny.” Id. at 92-93, 106 S.Ct. at 1720-21 (citation omitted). Under Batson’s analysis, a defendant who belongs to a cognizable racial group may establish a prima facie equal protection violation by showing that the prosecutor exercised peremptory challenges against members of the defendant’s race and that this “and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.” Id. at 96, 106 S.Ct. at 1723. Once a prima facie case is established, the burden shifts to the prosecutor to come forward with a racially “neutral explanation related to the particular case to be tried.” Id. at 98, 106 S.Ct. at 1723 (citation omitted). The trial court then must decide on the basis of all the evidence whether a denial of equal protection will result if it overrules the defendant’s objec[*1546] tion to the prosecutor’s exercise of the challenge. Id. at 98, 106 S.Ct. at 1723-24.

Initially, we hold that the vague explanation offered by the prosecutor in the instant case was legally insufficient to refute a prima facie case of purposeful racial discrimination. While the reasons given by the prosecutor “need not rise to the level justifying exercise of a challenge for cause,” see Batson, 476 U.S. at 97, 106 S.Ct. at 1723, the prosecutor must nevertheless “give a ‘clear and reasonably specific’ explanation of his ‘legitimate reasons’ for exercising the challenges.” Id. at 98 n. 20, 106 S.Ct. at 1723 n. 20 (quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 258, 101 S.Ct. 1089, 1096, 67 L.Ed.2d 207 (1981)). The prosecutor's explanation in the present case, “I just got a feeling about him,” obviously falls short of this requirement. As the Batson court concluded, “If [such] general assertions were accepted as rebutting a defendant’s prima facie case, the Equal Protection Clause ‘would be but a vain and illusory requirement.’ ” Id. at 98, 106 S.Ct. at 1723 (quoting Norris v. Alabama, 294 U.S. 587, 598, 55 S.Ct. 579, 583-84, 79 L.Ed. 1074 (1935)).

As noted above, after the prosecutor failed to articulate a sufficient explanation for striking Beckham, the district court reversed its earlier ruling that the circumstances permitted an inference that the prosecutor had purposely discriminated against the appellants by striking the one juror who was of their same race, or in the vernacular of Batson, that the appellants had established a prima facie case of purposeful discrimination. The district court’s action was based on the erroneous belief that a prima facie case of purposeful discrimination under Batson could be established only through evidence of a systematic discriminatory use of peremptory challenges. While Batson noted that a pattern of strikes against black jurors might be a relevant circumstance to consider, the Court stated that the example was “merely illustrative.” Id. at 97, 106 S.Ct. at 1723. We have held that the number of black jurors struck is not dispositive to the issue of whether a prima facie case has been established. See United States v. David, 803 F.2d 1567, 1567 (11th Cir.1986). Accordingly, we hold that the district court in the instant case erred in foreclosing any consideration of other factors which might have supported an inference of discriminatory purpose, the most obvious of which was the prosecutor’s disparate treatment of veniremen who were similar in relevant aspects except race.

We therefore vacate the district court’s decision that appellants did not establish a prima facie showing of racial discrimination in the prosecutor’s use of his peremptory challenges, and remand for further proceedings consistent with this opinion. If the district court, after considering all of the relevant circumstances, decides that the relevant evidence establishes, prima fa-cie, purposeful discrimination, appellants must receive a new trial.

VACATED and REMANDED.

1

. Appellants argue that the district court erred in refusing to require the prosecutor to reveal the identity of the Government’s confidential informant. The Government contends that the informant in this case was a "mere tipster," who neither directly participated in nor witnessed[*1544] the transaction, and that the Government was therefore under no obligation to reveal his identity. See Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957). Assuming, nonetheless, that the informant’s involvement was more than that of a mere tipster, we still find no error in the district court's refusal to require the disclosure of his identity because the record contains no indication that his testimony would be helpful to the defense. On the contrary, the appellants’ motion seeking disclosure suggests that the informant’s testimo,ny would be damaging to the defense. Under these circumstances, disclosure was not required. Id. at 62-64, 77 S.Ct. at 628-30.

In addition to challenging their conviction, appellants also challenge their sentences. They contend that the district court gave them the maximum sentence permissible under the statute — 15 years in prison — because they exercised their right to go to trial rather than pleading guilty. We can find nothing in the court’s colloquy with the appellants prior to trial, nor in the court’s colloquy during the sentencing of the appellants, to indicate in any way that the appellants were either being pressured to plead guilty or being punished for not having done so. We therefore reject this claim as well.

2

. The right to the equal protection of the laws expressed in the fourteenth amendment has been found by implication in the due process clause of the fifth amendment, which itself contains no equal protection clause. See Johnson v. Robison, 415 U.S. 361, 364 n. 4, 94 S.Ct. 1160, 1164 n. 4, 39 L.Ed.2d 389 (1974).

3

. Like many of the white jurors, Beckham testified that he was employed, his wife was a housewife, his child was enrolled in college, neither he nor any of his family members or friends had ever been subject to criminal proceedings, he had never been subject to an IRS audit, he had never been involved in a civil law suit, and he did not have any friends in the field of law enforcement, the legal profession, or the medical profession.

4

. In contrast to Beckham, whose answers to the judge's questions were the same as those provid[*1545] ed by white jurors whom the prosecutor did not strike, prospective juror Daniel Gonzalez testified that a member of his family had been convicted of a crime and served time in prison, that he himself had once been subject to a criminal charge, that he had been a witness in a trial, and that he had several friends who were members of the legal and medical professions.

5

. In explaining its decision, the district court stated:

In view of the Supreme Court decision which has come down just yesterday with regard to prosecutorial peremptory challenge of black persons, I wanted our record clear there was only one black person among our thirty-five people [on the venire], and that black person was struck by the prosecution. There was no more than one black person, so as far as establishing a pattern during this jury selection process, the Court finds no cause. There was only one person, which I think is a significant factor. If there were more than one person and both of them were struck, or three people, or four people, then we might be able to establish a pattern.
I don’t think that on the basis of what is in this case there is any pattern indicated that this Court could make a finding by design that the prosecutor has eliminated this black person, Mr. Beckham, from the Jury.
6

. The district court was correct in revisiting appellants’ objection to the prosecutor’s use of the peremptory challenge against Beckham in light of the Batson decision. See Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987) (Batson's holding is to be applied to all cases "pending on direct review or not yet final” at the time Batson was decided.).