The Eighth Circuit has held on direct appeal that, under some circumstances, it is error for a trial court to refuse to give an alibi defense instruction. Compare United States v. Dawn, 897 F.2d 1444, 1450 (8th Cir.) (finding no error), cert. denied, 498 U.S. 960, 111 S.Ct. 389, 112 L.Ed.2d 400 (1990), with United States v. Webster, 769 F.2d 487, 490 (8th Cir. 1985) (finding error). However, even when the Eighth Circuit has held that the failure to give an alibi instruction was error, it has subjected the error to harmless error review.

The appellants' argument is offered in the face of overwhelming prior judicial rejection, a full ten circuits have authorized the use of acquitted conduct in sentencing under the Sentencing Guidelines. See United States v. Coleman, 947 F.2d 1424, 1428-29 (10th Cir. 1991); United States v. Rivera-Lopez, 928 F.2d 372, 372-73 (11th Cir. 1991) (per curiam); United States v. Fonner, 920 F.2d 1330, 1332-33 (7th Cir. 1990); United States v. Duncan, 918 F.2d 647, 652 (6th Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 2055, 114 L.Ed.2d 461 (1991); United States v. Rodriguez-Gonzalez, 899 F.2d 177, 180-81 (2d Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 127, 112 L.Ed.2d 95 (1990); United States v. Dawn, 897 F.2d 1444, 1449-50 (8th Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 389, 112 L.Ed.2d 400 (1990); United States v. Mocciola, 891 F.2d 13, 16-17 (1st Cir. 1989); United States v. Isom, 886 F.2d 736, 738-39 (4th Cir. 1989); United States v. Juarez-Ortega, 866 F.2d 747, 748-49 (5th Cir. 1989); United States v. Ryan, 866 F.2d 604, 608-09 (3d Cir. 1989). Only the Ninth Circuit, over a strong dissent by Chief Judge Wallace, has rejected the use of acquitted conduct in sentencing, and it did not rest its decision on constitutional grounds.

" United States v. Allison, 908 F.2d 1531, 1538 (11th Cir.) (quoting United States v. Young-Bey, 893 F.2d 178, 179 (8th Cir. 1990)), reh'g denied, 920 F.2d 13 (1990) (en banc); see also United States v. Dawn, 897 F.2d 1444, 1448 (8th Cir.) (defendant obligated to develop record, beyond mere numbers, in support of alleged violation), reh'g denied, 897 F.2d 1444 (8th Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 389, 112 L.Ed.2d 400 (1990). Willie has presented no such facts.

We agree that a defendant's race "is irrelevant to the Fourteenth Amendment standing inquiry," id. at 814 (Marshall, J., dissenting), see id. at 811-12, and reject the government's position that defendants Freeman and Prine cannot raise an equal protection claim. See United States v. Dawn, 897 F.2d 1444, 1448 n. 4 (8th Cir. 1990). Batson stands for the proposition that the striking of a single black juror for racial reasons violates the equal protection clause.

In his brief, Foster candidly admits, as we noted in Harris, 959 F.2d at 265, that ten other circuits have determined that such enhancements are proper.See United States v. Averi, 922 F.2d 765, 765-66 (11th Cir. 1991); United States v. Coleman, 947 F.2d 1424, 1428-29 (10th Cir. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1590, 118 L.Ed.2d 307 (1992); United States v. Duncan, 918 F.2d 647, 652 (6th Cir. 1990), cert. denied, 500 U.S. 933, 111 S.Ct. 2055, 114 L.Ed.2d 461 (1991); United States v. Fonner, 920 F.2d 1330, 1332-33 (7th Cir. 1990); United States v. Dawn, 897 F.2d 1444, 1449-50 (8th Cir.), cert. denied, 498 U.S. 960, 111 S.Ct. 389, 112 L.Ed.2d 400 (1990); United States v. Rodriguez-Gonzalez, 899 F.2d 177, 180-81 (2d Cir.), cert. denied, 498 U.S. 844, 111 S.Ct. 127, 112 L.Ed.2d 95 (1990); United States v. Isom, 886 F.2d 736, 738-39 (4th Cir. 1989); United States v. Juarez-Ortega, 866 F.2d 747, 748-49 (5th Cir. 1989); United States v. Mocciola, 891 F.2d 13, 16-17 (1st Cir. 1989); United States v. Ryan, 866 F.2d 604, 608-09 (3d Cir. 1989). The Ninth Circuit has some authority to the contrary, see United States v. Brady, 928 F.2d 844, 851 (9th Cir. 1991).

Indeed, although we do not advocate departure from the normal course of a Batson proceeding, the government's explanation of its peremptory challenges may obviate the necessity of determining whether the defendant has made a prima facie Batson showing. See Hernandez 111 S.Ct. at 1866 ("Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question . . . the preliminary issue of . . . a prima facie showing becomes moot."); see also United States v. Dawn, 897 F.2d 1444, 1449 n. 5 (8th Cir.), (noting that explanations about peremptory challenges without prior establishment of a prima facie case "is not required by Batson and may not even be appropriate in all circumstances"), cert. denied, ___ U.S. ___, 111 S.Ct. 389, 112 L.Ed.2d 400 (1990). The venire in the present case contained twenty-eight persons of whom eight were black. The government exercised four of its peremptory challenges against black venirepersons, leaving four blacks to sit on the jury that tried Day.

812 F.2d at 1313-14. Defendants have failed to present a record which raises an inference that the prosecution struck potential jurors because they were Hispanic. The burden of creating a record of relevant facts belongs to the defendants. United States v. Dawn, 897 F.2d 1444, 1448 (8th Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 389, 112 L.Ed.2d 400 (1990); United States v. Sangineto-Miranda, 859 F.2d 1501, 1520 (6th Cir. 1988). 1. Number of Hispanics Struck

Five other circuits allow a district court to make findings of fact during sentencing that have been implicitly rejected by a jury's not guilty verdict. See, e.g., United States v. Rodriguez-Gonzalez, 899 F.2d 177, 179-82 (2d Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 127, 112 L.Ed.2d 95 (1990); United States v. Dawn, 897 F.2d 1444, 1449-50 (8th Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 389, 112 L.Ed.2d 400 (1990); United States v. Juarez-Ortega, 866 F.2d 747, 748-49 (5th Cir. 1989); United States v. Ryan, 866 F.2d 604, 609 (3d Cir. 1989); United States v. Mocciola, 891 F.2d 13, 16-17 (1st Cir. 1989). But cf. United States v. Perez, 858 F.2d 1272, 1277 (7th Cir. 1988) ("This court has upheld the trial court's consideration of a prior acquittal as long as the acquittal is not relied upon to enhance the sentence.").

Indeed, most cases simply quote Batson v. Kentucky, supra, 476 U.S. at 96, 106 S.Ct. at 1722-23 to describe the requirements of a prima facie case. See Teague v. Lane, 489 U.S. 288, 295, 109 S.Ct. 1060, 1067, 103 L.Ed.2d 334 (1989); United States v. Moore, 895 F.2d 484, 485-86 (8th Cir. 1990); United States v. Battle, 836 F.2d 1084, 1085 (8th Cir. 1987); Mejia v. State, 328 Md. 522, 616 A.2d 356, 361 (1992); People v. Jenkins, 75 N.Y.2d 550, 555 N.Y.S.2d 10, 12-13, 554 N.E.2d 47, 49-50 (1990); see also United States v. Dawn, 897 F.2d 1444, 1448 (8th Cir. 1990) ("number of peremptory challenges the prosecutor exercises to exclude black members of the venire" is not enough for prima facie showing, trial court should consider all facts and circumstances, including a "pattern of striking blacks and the prosecutor's questions and statements during voir dire"), cert. denied, 498 U.S. 960, 111 S.Ct. 389, 112 L.Ed.2d 400 (1990); Stanley, supra 313 Md. at note 3, 542 A.2d at 1277, 1278 (preponderance standard for initial prima facie showing, shifting burden of production to the state to respond to the rebuttable presumption of purposeful discrimination). The Third Circuit Court of Appeals' five factors are: "How many members of the 'cognizable racial group' are in the venire panel; the nature of the crime; the race of the defendant and victim; a pattern of strikes against black [or other cognizable racial group] jurors in a particular venire; and a prosecutor's questions and statements during the selection process."

See, e.g., United States v. Bryser, 954 F.2d 79, 87 (2d Cir.), cert. denied sub nom. Degerolamo v. United States, 112 S.Ct. 2939 (1992); United States v. Carter, 910 F.2d 1524, 1531 (7th Cir. 1990), cert. denied, 111 S.Ct. 1628 (1991); United States v. Dawn, 897 F.2d 1444, 1450 (8th Cir.), cert. denied, 111 S.Ct. 389 (1990); United States v. Braxton, 877 F.2d 556, 564 (7th Cir. 1989); United States v. Webster, 769 F.2d 487, 490-91 (8th Cir. 1985); United States v. Hicks, 748 F.2d 854, 857 (4th Cir. 1984); United States v, Ragghianti, 560 F.2d 1376, 1379 (9th Cir. 1977); United States v. Burse, 531 F.2d 1151, 1153 (2d Cir. 1976); United States v. Megna, 450 F.2d 511, 513 (5th Cir. 1971); United States v. Marcus, 166 F.2d 497, 503-04 (3d Cir. 1948). Burse explained the reasoning behind the rule requiring an instruction based on an alibi defense as follows: "Jurors are, by definition, untrained in the specifics of the law and, accordingly, must be instructed as to the legal standards they are bound to apply.